Most married couples dread the unthinkable possibility of divorce.  Dreams and plans have been made that contemplate a lifetime of togetherness and family memories.  If circumstances arise that render the marriage unsustainable, people need to fully understand the ramifications of a divorce, both in terms of child custody and division of marital assets.  Today's blog will address the basic legal requirements of property division in a divorce.

Separate Property v. Community Property

Texas is known as a "community property" state.  At the time of divorce, all community property must be divided by the Court in a "just and right"  manner.  Essentially, all property acquired during the marriage, regardless of whose name the property is titled in, is presumed to be community property.   Separate property includes any property that either spouse can prove to the Court, by clear and convicing evidence, is that spouse's separate property.  Separate property essentially includes (1) property owned by the spouse prior to marriage; (2) property acquired during the marriage by gift, devise or descent; and (3) property acquired during the marriage via a personal injury judgment or settlement, except that portion related to lost wages. 

Award of Property

The only thing the Court can do with separate property, upon accepting clear and convicing evidence of its' separate property nature, is to confirm that the property is, in fact, the separate property of that particular spouse.  An award of such property to the other spouse is an abuse of discretion, and would be reversed on appeal.  As stated above, the Court is required to divide the community property in a "just and right" manner.  In reaching its' decision about what is just and right, the Court will consider all relevant evidence properly submitted by both parties, such as the income and future earning capacity of each party, and any fault in the breakup of the marriage.  It is important to note that the Court does not need to divide each an every asset separately, but rather can consider the overall property and allocate assets to one or the other so that the overall package is just and right. 

Allocation of Debt

Just as the Court is required to divide the community assets, the Court is also required to allocate responsibility for the community debts of the parties.  Such allocation must also be "just and right", factoring in the award of community property. 

When contemplating divorce, spouses should seriously consider the financial ramifications of the divorce before proceeding.  Consulting with an experienced divorce attorney can provide the information and insight necessary to make educated, well-informed decisions.  The attorneys of Christiansen Law Firm have significant experience handling divorce matters, and advising clients on property division.  Contact the attorneys of Christiansen Law Firm in Houston or San Antonio for an evaluation of your case today.