There are many challenges of divorce, but finding a way to split your shared assets and properties is one of the most difficult trials in any split. Even if you’ve only been married a short while, you and your spouse have likely acquired numerous assets as a married couple. From shared vehicles to shared investments, all of these assets that you once enjoyed together must now be divvied up between the two of you, unless the exception of separate property applies. You could go through this independently and come to terms the two of you agree to without court assistance. However, in many cases, couples may have to submit the issues to a judge to determine how property should be divided in a divorce.
If you will be divorcing through the court, it’s important that you understand what Texas courts consider a “just and right” division of the community property. Before the process becomes overwhelming, make sure you know what to expect.
All property in a marriage is considered either community property or separate property. All investments, belongings, and debts acquired during the marriage are presumed to be community property and are presumptively owned by both spouses. This can include your house, vehicles, vacation homes, furniture, and investments. Separate property is anything owned independently by one spouse before marriage, by gift, or by inheritance. This might include things like inheritance, heirlooms, or properties acquired before marriage.
Property Division Will Be “Just and Right”
Your community assets will be divided equitably, but that doesn’t mean they will necessarily be divided 50/50. The court will consider several factors in your marriage in order to determine what is “just and right”. For example, if each spouse has a different earning capacity, it might not be “just and right” for each to receive half of the assets and half of the debts from the marriage, because one spouse might be unable to afford those debts.
The factors that can impact property division include:
- Fault in the divorce
- The incomes of each spouse
- The difference in earning capacity between spouses
- The spouse acts as primary caretaker or has child custody
- The separate properties of either spouse
- Wasting of community assets
Potential Fault in the Divorce
Some states, including Texas, will factor in the potential fault of the divorce. For example, if one spouse cheated during the marriage, that “fault” can be factored into the property division. Other types of fault may include abuse, cruelty. If your spouse was abusive or cruel to you, he or she might be less entitled to the community assets in your marriage. The court may factor in the spouse’s wrongdoing and determine what is just and right based on that couple’s specific circumstances. In this way, each couple’s property may be divided differently, but the court will always consider the same factors in determining what is fair.
If you need assistance with property division or other aspects of divorce, we can help. Contact Phillip M. Herr, Attorney at Law to discuss your options with our firm.