Division of Marital Assets

As a community property lawyer and division of marital assets attorney in Austin, Texas, I know there is often confusion regarding community propertyissues in Texas divorce and other family law cases. Texas is a community property state, so when divorce occurs, spouses often need the assistance of an experience family law attorney to help them plan for an equitable division of marital property in their divorce settlement.

Locating and Identifying Assets

One of the first things your marital asset attorney should do is work with you to help locate and identify the marital assets of both you and your spouse.

Reaching Fair Divorce Settlements through Mediation or Litigation

By utilizing mediation, spouses are allowed to craft their own asset division agreements according to whatever is most important to them – not subject to the opinions of judges or juries. But when parties cannot agree, the Texas family law attorney should fight aggressively for his client's best interests at trial.

Division of Property in Texas

When there is little or no marital property, no children, no issues of spousal maintenance, amicable spouses can usually obtain a quick divorce by having an attorney draft a divorce agreement and having a judge approve it. Most divorces, however, are quite different and far more complex. The typical Texas divorce involves a union of many years with considerable marital property, both personal property and real estate, children, family businesses, large or concealed debts, trust funds, real estate in other states, joint and separate accounts, investments, insurance, pensions, and other assets. In these complex situations, the parties often cannot divide their property on their own and therefore may require court involvement for its ultimate division. In these cases, the help of a community property lawyer may be needed.

Community Property

In Texas, division of property occurs under community property rules. However, Texas, unlike other community property states, does not have to divide this community property owned by the parties equally. The court is only required to divide the marital assets in a "just and right" manner. Any separate property is retained by the spouse who owns it.

The first dispute in contested cases is regarding which marital assets are community property. Usually, all earnings acquired during marriage and everything obtained with those earnings are community property. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are obligations of the community property estate.

Generally separate property will be:

Gifts and inheritances given just to that spouse;

Personal injury awards received by that spouse, except for any award for loss of earnings;

Proceeds of a pension that vested before marriage;

Properties purchased with the separate funds of a spouse remain that spouse's separate property; and/or

A business owned by one spouse before the marriage remains his or her separate property during the marriage, although a claim for reimbursement by the community estate may arise under certain circumstances.

Conflict may arise when separate property is mixed together with community property. Sometimes, one spouse may be able to identify which portion of the property is separate. One example of this is when a house is owned before marriage and continuing mortgage payments are made throughout the marriage. Otherwise if the separate property becomes mixed with the community property, and the two cannot be distinguished, the entire thing becomes community property.

Property to Be Divided

Certain kinds of property continue to create controversy at divorce, even under the division rules of the community property system. Divorcing couples need to be aware of these assets and the issues their division may present. Some of the most troublesome assets include:

Family Home

Pensions

Family-Owned Businesses

In each case, complexities of ownership can complicate a divorce.

Conclusion

Many couples have a difficult time reaching an agreement about how to divide their property. Because the division of property depends on the complexity of your assets and liabilities, it is important to consult with a knowledgeable community property attorney or marital asset lawyer for assistance if you anticipate the division of property is likely to be an issue of controversy in your divorce.

If you are facing a Texas divorce, custody or modification case, protect yourself and your family.

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