In AUSTIN and throughout Texas

The "Just and Right" Division of Property in Texas Divorce Cases

The division of property can be one of the most contentious aspects of a divorce. This is especially true when the husband has been the primary financial provider in the marriage. By the time a marriage comes to an end, most couples have accumulated wealth that might include personal property, real estate, bank accounts, investments, family business assets, insurance, retirement accounts and other assets.

Multiple types of assets earned over the years can make property division complicated. However, knowing what courts consider when dividing property can help alleviate some of the fear of losing part of what you have owned up to that point.

The Just and Right Division of Property

Texas is one of nine community property states in the U.S., which means the law distinguishes between community property and separate property. All property acquired by either spouse during the marriage is presumed to be community property unless a spouse can prove by clear and convincing evidence that an asset is separate property.

Separate property includes any property owned by a spouse before the marriage, received as a gift or inheritance during the marriage or money a spouse received for personal injury during the marriage.

During a divorce, each spouse keeps his or her separate property and a judge decides how to divide the community property. In some states, community property is divided exactly down the middle. In Texas, though, a judge must divide community property in a way that he or she "deems just and right." Essentially, this means the property is divided fairly.

Judges look at a number of factors in making a "just and right" division of property, including:

  • Difference in spouses' earning capacity
  • Difference in spouses' age and health
  • Difference in spouses' educational backgrounds
  • Which spouse mainly raises any children
  • The needs of each spouse and children

Therefore, a judge would consider the needs of a stay-at-home mother who may not have worked in years versus the needs of her working husband when dividing up the community property. In addition, the needs of any children from the marriage would be considered to ensure their needs are met.

In most marriages, the family home is the largest asset. When children are involved, judges seek to avoid disrupting the children's lives and leave them in their homes. That usually means the custodial parent will be awarded the family home, if financially possible in light of the other community property to be divided.

Just as marital assets will be divided, so will marital liabilities. While not all debts incurred during the marriage belong to both spouses, judges also apportion the debts in a "just and right" manner. Unfortunately, a judge's allocation of debt does not stop creditors from coming after both spouses.

Texas Alimony (Spousal Maintenance) Laws

The issue of alimony ("spousal maintenance" in Texas) often arises in divorces where the wife has been a stay-at-home mother while the husband has worked outside the home to provide financial support. Because of that common division of labor, the stay-at-home mother has become financially dependent on the husband.

Under Texas law, post-divorce spousal maintenance can only be awarded in marriages of 10 years or longer. Moreover, there is no right to permanent spousal maintenance in Texas. Judges are prohibited from granting maintenance awards for periods longer than three years after the divorce is finalized, no matter how financially dependent a spouse may have been on the other.

While courts are limited in post-divorce spousal maintenance awards, they have a considerable amount of flexibility in awarding temporary spousal maintenance while the divorce is pending. The financial needs of the financially dependent spouse will generally be met in light of the other spouse's ability to pay.

These temporary spousal-maintenance payments can often be used in negotiating other aspects of a divorce settlement and the division of property. Nevertheless, because of potential tax implications from spousal maintenance and property division, one should carefully evaluate the situation with a professional.

Ask For Help

Many spouses in dissolving marriages have spent significant time caring for the home and family. Texas law seeks to reward those valuable contributions by dividing marital property in a "just and right" way.

However, because a variety of assets might be accumulated during a marriage, the division of those assets can be complex. Dealing with that division can add stress to an already difficult situation. Contact an experienced Texas family law attorney to help you navigate the legal complexities and tax implications of property division and spousal maintenance.

Categories: Articles

Attorney Tony R. Bertolino is the Managing Partner with Bertolino LLP. Our Law Firm has been able to help people across the state of Texas through our offices in Austin, Houston and San Antonio. If you need an experienced lawyer to represent you, contact Bertolino LLP today.

Super Lawyers Rising Star American Bar Association Defending Liberty Pursuing Justice State Bar of Texas Pro Bono College Super Lawyers New York State Bar Association Houston Bar Association Austin Bar Association American Center for Law and Justice 10.0Tony Ray Bertolino

Tell us about your legal matter

yes I have read the disclaimer