There are two main categories about property division that are important to understand if you’re getting a divorce: characterization and property division.
Characterization of Property
Under Texas law, property related to marriage can be characterized as either community property or separate property.
- Community property. Texas law presumes that all property owned at the time of the divorce is community property.
- Separate property. Property owned by a spouse before marriage or property received by a spouse during the marriage by gift or inheritance is separate property. Even so, the law requires that the separate property nature of an asset be established by clear and convincing evidence. This typically involves tracking the acquisition or receipt.
What if assets were used to pay off your spouse’s separate debts?
There can be claims for reimbursement to the community estate for separate debts paid off with community monies. There can also be claims for reimbursement to the separate estate of a spouse for community debts or improvements paid for by the separate property monies.
The only property that is subject to being divided in a divorce is property characterized as “community property.”
How Does the Court Divide Community Property?
Calculations are typically done differently depending on whether fault was involved in the breakup or not.
In the absence of fault in the breakup of the marriage
Community property is divided in a manner that is “fair and right, just and right” given the facts of the case — this usually means an even (50/50) split of community property.
To determine what 50% of the community property actually is:
- We calculate the net equity value of each asset.
- Add up the net values and divide by two to determine how much “value” each party should be awarded.
- Then we (usually on a spreadsheet) allocate the different assets to each spouse to equal that total “value” given to each spouse out of the community property.
Fault in the breakup of the marriage
Fault in the breakup of the marriage (adultery, cruel treatment, etc.) may result in a disproportionate share of the community estate being awarded to a non-at-fault spouse. Even so, the difference is usually minimal.
(C.E. Borman & Associates) provides legal assistance for family law, divorce and estate planning matters.