DivorceEstate PlanningProperty DivisionHow To Divide Community Property Without An Agreement

May 8, 20210

Division of Community Property Without an Agreement

In a divorce, the properties commonly owned by the spouses shall be divided. But before the court does that, it needs to identify which properties are commonly owned and which are not. It also helps to have an agreement between the spouses as to the division of properties. But what happens if there is none?

Prior to the division, the court will identify and value the properties commonly owned by the couple. The spouses, however, may express their own values for the properties. But the court will usually lean toward using the fair market value of the properties.

Since these properties are co-owned by the divorcing couple, each spouse generally gets one-half of the value of their community estate. However, this may be subject to the order of the court, awarding the properties in a manner that is just and right under the circumstances.

In awarding the properties to each of the spouses, the court will consider several factors. This includes who was at fault, who gets custody of the kids, and the needs of each spouse.

What If the Property is Outside of Texas?

If the property is within Texas, the court will have no problem enforcing its order for the division of community properties. However, an issue may arise when the estate is outside of Texas.

Unless the couple will submit to the jurisdiction of the Texas court, the property outside of the state may not be divided, following the divorce decree.

What Other Assets May Be Divided?

Real and personal properties are not the only assets to be divided pursuant to the divorce decree. Another asset that needs to be considered is the couple’s life insurance if there are any.

While at present, any life insurance has no “cash” value, the proceeds of the life insurance are only payable at the time of death of the insured. If the spouse is the beneficiary of the insured spouse, the court will need to look into this for purposes of dividing their community property.

Another item that needs to be addressed is worker’s compensation benefits. Any benefit shall accrue from the time of the injury. So if the spouse is injured during the subsistence of the marriage, any benefit shall form part of their community property.

The court will also look into the health insurance and retirement plans of the spouses.

As for movable items like household furnishings, the court will order an itemized inventory and have the spouses pick which they want to have. Usually, the spouses agree to the division of these assets without the court’s intervention.

Are you looking to file for divorce? It is best to speak with a lawyer before asking your spouse for a divorce to give you a clear understanding of the matter. 

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