Divisions of Property in Divorce

Divisions of Property in Divorce

Divorce and Dividing Property

At some point after realizing the likelihood of success of your marriage lasting and the steps necessary for a divorce to occur, you start thinking about where everyone will live and how everything will be split up. Whether it’s a separation and then a divorce or filing for divorce while living together, the concerns remain the same. The steps to protect yourself and your property remain the same. Although an experienced attorney helps in planning any type of property split, by better understanding the rights you have and challenges you face will help you protect what’s important to you.

Community versus Separate Property

Texas, like 8 other states, follows laws which establish community property during the marriage. There is also a presumption that everything you own is community property. This does mean each partner in the marriage maintains an equal right to the property without guaranteeing they will gain 50% of the property after the split. Courts divide up property by a “just and right” division. So, before you separate make sure you take steps to gather information regarding what property and debts each of you own currently.

Community property is made up of:

• Income earned during the marriage, whether from your employment or other means;
• Property purchased during the marriage using that income; and
• Property you agreed to in writing being community property.

This does not include all debts or loans created during the marriage.

Separate property is made up of:

• Money or property inherited;
• Any gift;
• Money and property owned prior to marriage;
• A portion of personal injury settlements and awards; and
• Property included in a pre-nuptial or post-nuptial (marital) agreement.

How To Divide Up Property?

Divorce in Texas, whether it’s Collin County, Denton County, Rockwall County, or any other county in Texas, maintains 2 ways for a division to occur. You divide property either by agreement or a court determining what property each spouse will take with them after the divorce. Agreements may be reached through the collaborative divorce process, mediation settlements agreements achieved through mediation, or informal settlement agreements achieved through settlements between you and your spouse. These agreements may simplify the process and can include partial or full divisions of property. Most lawyers and judges agree that agreements not only streamline the process and simplify the issues, but avoid the costly process of trial and litigation.

You can help resolve disputes and make the division in property less stressful by doing the following:

• Full Disclosure: Provide a full disclosure of your property and debts. This helps build trust and makes it easier for each side to reach resolution;
• Track Down Documents: Make sure you gather all your statements, money transfers, records of improvements to your home, and any other documents not only over the past few years but going back throughout your marriage. This helps in tracing property you believe is your separate property;
• Consider Settlements: Do not outright reject settlements and take time to consider mediation, if necessary. Having an objective 3rd party assist you in reaching resolution often times helps you achieve your goals;
• Seek Assistance: Attorneys not only help you prepare for court but understand the law and procedures related to a divorce. An experienced attorney helps you understand Texas property laws and how to protect your interests while achieving your goals.

If agreements cannot be reached, each party will attend trial, present evidence, argue issues of community versus separate property, and prove to the Court what property is separate property. Currently, on average, cases in Collin County and Denton County take 8-12 months before a trial occurs. At trial, you present evidence to prove what property is your separate property and what you believe is a “just and right” division of property, whether that’s a 50/50 split or an un-even split in property.

What Happens in Court?

When you appear in court and present your evidence, the judge considers multiple factors when making a decision regarding your case and property. Judges look at:

The nature of your property (community versus separate);

• Fault in the divorce;
• Length of marriage;
• Any misconduct affecting the property;
• Creditors and your relationship to those creditors;
• Each spouses’ actions in helping to build community property;
• Each spouses’ age, health, and future employment possibilities; and Children.

Often times, a court may order the sale of property, depending on the circumstances. If you wish to keep the house, an experienced attorney helps. In order to prove property as separate, a spouse needs to trace the property from when it became their property to present day.

Educating yourself on how property division in divorce occurs is essential for anyone going through a divorce or separation. Knowing the difference between community and separate property, dividing property, and your legal rights can help you make informed and well planned out decisions. If you find yourself in a difficult situation and need to discuss this with someone, you can always reach out to an attorney to give you some advice and direction. Please feel free to give Rasley Law Group a call at 972-584-7626 or visit our website at www.rasleylaw.com.