Divorcing couples are likely to have many questions about asset division. Handled on the state level, courts will generally use one of two legal precedents for asset division: equitable distribution or community property.
Texas is one of nine states that still use community property laws. These statutes dictate that each spouse equally owns all property acquired during a marriage. It is important to note that this does not automatically dictate that a divorce divides all property evenly but provides a basis from which to start negotiations.
Texas classification of marital property
Unless proven otherwise, Texas courts consider all property acquired during a marriage “community property.” Texas law deems property owned before marriage as separate property, as well as property acquired by “gift, devise or descent” — birthday gifts, family heirlooms and any property bequeathed to an individual in a will or through probate. These possessions are exempt from division under community property law.
Community property laws dictate a 50/50 split of all property acquired during the marriage upon divorce. However, Texas courts generally use this as a starting point for negotiations rather than a dictating factor. Texas law focuses on “equitable” distribution, providing each spouse their “fair” share. A Texas judge will primarily consider three factors when determining what is fair:
- Each spouse’s earning capacity
- Which spouse is the legal caretaker of any children
- Whether fault exists in the divorce, including if a spouse committed adultery or acts of cruelty
A judge may also consider the health or physical conditions of each spouse, who may suffer a loss of continuing benefits, expected inheritances, the size of the divided estate, age differences, and any gifts made to either spouse.
Professional legal counsel can help
Anyone with questions about a Texas divorce may find answers with a local lawyer who frequently practices family law. An attorney can help spouses explore alternatives to courtroom litigation as well. A couple can avoid many of the complications of community property through alternative dispute resolution, including mediation.