A common question that our clients often ask is how assets and debts will be divided when getting a divorce. Is Texas a 50/50 Community Property State? The short answer is no. But it’s not that straightforward. Texas is a community property state, but the courts are not required to use a 50/50 property division. It varies differently from other community property states because Texas community property laws state that property must be divided in a way that is “just and right” in the event of a divorce and not necessarily in a 50/50 equal split. Our Bryan, Texas, divorce attorneys will walk you through some of the factors courts will consider when dividing marital assets in Texas.
What is community property?
Community property means property, assets, and debts acquired during a marriage by either spouse. In contrast, separate property might also include a gift given only to one spouse or, for example, a spouse’s inheritance.
Top examples of community property include:
- Your shared home
- Additional homes (vacation homes, investment properties, etc.)
- Cars, boats
- Furniture, appliances, and other household items
- Your income earned through employment during the marriage
- Pensions, 401k contributions, and other retirement accounts
- Checking and savings accounts
- Any debts incurred during the marriage (mortgages, student loans, personal loans, medical debt, etc.)
How is community property divided in Texas?
As mentioned above, community property is divided “in a manner that the court deems just and right.” There are numerous factors that the courts will review when dividing marital assets and debts.
The courts will consider the following in Texas:
- The length of the marriage
- The age and health of each spouse
- The contributions, income, and earning capacity of each spouse
- The economic circumstances of each spouse (for example, relevant tax consequences or education and future employment prospects)
- Child custody and the needs of any children of the marriage
- The conduct of each spouse during the marriage (adultery or drug abuse)
The court will also consider any agreements the spouses have made regarding the division of assets, such as a prenuptial agreement.
What happens when ex-spouses can reach an agreement on their own?
In some cases, spouses may agree to a different property division than the court would order. This spousal agreement is then, of course, presented to the court. If the court determines the agreement is “just and right,” the agreement would be approved and incorporated into the divorce decree.
If the court does not approve the agreement, the judge can either request the spouses to try again or order a hearing to determine if the couple cannot reach a fair agreement.
How can community property be avoided in Texas?
There are several ways that couples can avoid having their property considered community property in the event of a divorce.
Enter into a prenuptial agreement: In a prenuptial agreement, the couple can specify which property and assets will be considered separate property and which will be considered community property. A prenup also sets the terms for how assets will be divided if a divorce occurs.
Keep all assets and property separate. All assets and property should be in the name of the individual spouse who owns it and should not be used to pay for expenses related to the community property, such as the mortgage or household bills.
Keep records of separate property contributions. To ensure that property is considered separate property in the event of a divorce, couples should keep detailed records of separate property contributions. These documents include bank statements, receipts, and other documentation showing the source of the funds used to acquire the property.
Working with an experienced divorce law firm in Bryan, Texas
If you are considering divorce, it is important to speak with an experienced divorce attorney. Our Texas divorce and family law firm can answer all your questions, provide you with all your options, and be there to guide you from beginning to end.
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