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Divorcing a spouse’s debt not always easy in Texas

On Behalf of | Feb 19, 2020 | Property Division |

Texas is a “community property” state. Almost all money you make or wealth you create during your marriage belongs to the marriage, not to you. Also, any debt you or your go into during the marriage is generally also the marriage’s community debt.

In a Texas divorce, the courts try to split assets as well as debts in half, right down the middle. They try to do the same with debts.

But as you might expect, the closer you look at this simple picture, the more it takes on complications and exceptions.

Community property and community debt

Texas and other community property states see a married couple’s finances as joined in matrimony. Our statutes cannot list every kind of property treated as community, because community is the default (“presumptive”) status of the couple’s property.

Instead, it is easier for our statutes to specify only what is not community property. Called “separate property,” is it anything you:

  • Owned before the marriage.
  • Got as a gift during the marriage.
  • Had left or passed to you during the marriage because someone passed away.
  • Recovered in a personal injury action during marriage, other than for losses of income or other things that would have been community.

One way to look at debt is as property with a minus sign in front of it. This can help you figure out what is likely to be community debt and separate debt during your marriage and when it comes time to divorce.

Courts aim for equal division

Just as with separate property, pre-marriage debt is separate debt. If you married into a lot student loan debt, you might also be divorcing a lot of student loan debt. But if one or the other of you splurged during the marriage on an expensive cabin or car or horse, you are both likely to take away half the debt.

But courts are typically happy to accommodate plans the couple or their attorneys devise, if they do not stress the state’s policy of equal division of community assets.

Selling community assets to pay community debt is common. Perhaps a judge would permit your spouse take more than their fair share of community assets (the whole horse) if your spouse gave you one of their separate assets (the cabin they inherited).