The property division process of divorce can be quite contentious as each spouse seeks to protect their own interests. Couples generally accumulate a considerable amount of property over the duration of their marriage, and it can be difficult to determine whether a property belongs to one of the spouses or is shared among them, and if shared, how it should be divided. There are specific statutes in Texas family law that address these issues, but their applications are nuanced and complex, and only an experienced Austin family law attorney can ensure that property is divided fairly according to the law.
At Peek & Toland, we understand that divorce is a sensitive matter. Our compassionate Austin family law attorneys treat every case with the utmost gravity and never overlook the needs of clients. Other attorneys may decide to do what they think is best and neglect to communicate with their clients. We, on the other hand, maintain consistent communication with our clients, and while we may provide legal advice and guidance at pivotal moments, we never make decisions without approval from our clients. If you have any questions regarding our firm and the services we provide, call (512) 474-4445.
How is Separate Property Defined Under Texas Law?
The property you owned before the marriage and retained throughout is considered your separate property. This includes any income earned prior to marriage. As for property acquired during the marriage, anything that was directly gifted to you is considered yours alone. Any personal injury settlement you received for an accident you suffered is also your property.
Your separate property can be transformed. For example, any proceeds from the sale of stock you owned prior to marriage would be considered separate property. If you used the proceeds to fund an initial payment on a home, then the home would be considered your property.
How is Community Property Defined Under Texas Law?
The following property meets the criteria of community property:
- Income earned by either spouse during the marriage
- Property attained during the marriage
- Dividends, interest, and capital gain earned on community property
- Dividends and interest earned on separate property during the marriage
The general rule of thumb is that any property you and your spouse have accumulated from the beginning of the marriage until the date of divorce is community property and therefore subject to division according to the court’s discretion.
How is Separate Property Determined?
«Tracing» involves the process of proving the «separate» nature of property. If a separate property has undergone transformation, every step of the transformation must be documented or backed by testimony. If a spouse disputes a separate property claim, procedures can become much more complicated. Texas law requires that «clear and convincing evidence» be brought forward to prove that a property is separate. Hence, it is highly advised that you keep any documents and other material evidence that establish your property as your own.
How is Community Property Divided?
Texas courts do not always go with a 50-50 split. They consider many variables and make a decision according to what they believe is «just and right,» and this does not always equate into a truly fair split, since the judgment can be subjective. The factors the courts consider when determining the division of community property may include, but are not restricted to, the following:
- Earnings Potential
- Separate Property
- Circumstances Surrounding Marriage Breakup
Ensuring a Fair and Adequate Outcome
Chances are you’ve heard horror stories before about spouses who have lost nearly everything in the property division process due to bad court decisions or incompetent legal representation. In order to ensure that the same doesn’t happen to you, you should contact a dependable attorney who possesses a thorough understanding of Texas divorce laws. Call the law office of Peek & Toland today and get started on protecting your future.