When couples contemplate divorce, one of the questions that arises is how the property should be divided.  Understanding legal terms such as "community property", "separate property" and "just and right division" is critical to being properly prepared for divorce.  Today's blog post will define these terms and provide a basic explanation of how property is divided in Texas.

Community Property v. Separate Property

In a divorce case, the Judge is required to divide the community property, and is not permitted to award a party's properly established separate property to the other party.  Community property is property that is acquired during the marriage by either party or both parties, regardless of whose name the property is deeded or titled in.   Essentially, separate property is property that is (1) owned prior to the marriage; (2) acquired by a party during the marriage by gift, devise or descent; or (3) money received during the parriage by a party due to a personal injury settlement or judgment award (except that portion due to lost wages).  All property owned or claimed by either party at the time of divorce is legally presumed to be community property.  If a party claims property is his or her separate property, the facts supporting the contention must be proven by clear and convincing evidence in order to overcome the presumption of community property.

Division of Community Property

In a divorce case, the Judge is required to divide the community property in a "just and right" manner.   Most people intuitively think that 50/50 is just and right, and in many cases, Judges think this as well.  However, either side has the right to claim that a a 50/50 division is not just and right, and attempt to persuade the Judge that the division should be in unequal shares.  Wide varieties of circumstances have been successfully used to accomplish an unequal division, such as adultery, cruelty, family violence and unequal earning potential of the parties.  

If you're contemplating divorce, or believe your spouse will be seeking divorce, you should consult with a competent, experienced family law attorney for advice.  The family law attorneys of Christiansen Law Firm have more than 20 years experience representing spouses in divorce cases.  Contact Christiansen Law Firm in Houston or San Antonio to arrange a free consultation to discuss your matter.