Following a divorce, the court must divide the property between the spouses. Before legislatures equalized property allocation between both spouses, many divorce statutes substantially favored property allocation to the wage-earning spouse. These statutes greatly disadvantaged women disproportionately because during the 18th, 19th, and early-20th centuries, the participation of women in the workplace was much less than it has become during the latter-half of the 20th century and early part of the 21st century. The statutes failed to account for the contributions of the spouse as homemaker and child-raiser.

Modern courts recognize two different types of property during property division proceedings - marital property and separate property. Marital property constitutes any property that the spouses acquire individually or jointly during the course of marriage. Separate property constitutes any property that one spouse purchased and possessed prior to the marriage and that did not substantially change in value during the course of the marriage because of the efforts of one or both spouses. If the separate property-owning spouse trades the property for other property or sells the property, the newly-acquired property or funds in consideration of the sale remain separate property.

Modern division of property statutes strive for an equitable division of the marital assets. An equitable division does not necessarily involve an equal division but rather an allocation that comports with fairness and justice after a consideration of the totality of the circumstances. By dividing the assets equitably, a judge endeavors to effect the final separation of the parties and to enable both parties to start their post-marital lives with some degree of financial self-sufficiency. While various jurisdictions permit recognition of different factors, most courts at least recognize the following factors: contribution to the accumulation of marital property, the respective parties' liabilities, whether one spouse received income-producing property while the other did not, the duration of the marriage, the age and health of the respective parties, the earning capacity and employability of the respective parties, the value of each party's separate property, the pension and retirement rights of each party, whether one party will receive custodial and child support provisions, the respective contributions of the spouses as a homemaker and as a parent, the tax consequences of the allocations, and whether one spouse's marital misconduct caused the divorce. Most jurisdictions also give the family court judge broad jurisdiction by providing judges with the right to consider any other just and proper factor.

When assigning property, judges cannot transfer the separate property of one spouse to another spouse without the legislature having previously passed an enabling statute. Whether such an enabling statute exists varies between jurisdictions. Read More 

What’s the general rule of property division (equitable distribution, community property, or legal title) & Divorce in Texas?

Texas is a community property state.  However, the rules about marital property are different in Texas than those of other community property states.

The divorce court can divide the community property in a “just and right” fashion – that means whatever the judge thinks is fair under the circumstances.

A 50-50 division of the marital property is not required by Texas law.  It is common to have an unequal division of the property in cases involving children.  A multitude of factors can justify a lopsided division, including: a) disparity in the earning capacities of the parties, b) differences in educational backgrounds, c) primary responsibility for raising the children, d) differences in age and/or health of the parties, e) needs of the spouse and children after the divorce.

What effect does the conduct of the parties have on property division?

Very little, unless the conduct was intended to harm the other party.

Some judges will punish a party for adultery, psychological abuse of the spouse, or other misconduct that is morally improper; however, the number of jurists who do so is falling.

On the other hand, fraud, squandering money, spending money for the benefit of paramour’s and activities of that nature are frowned upon by virtually every judge and such misconduct will usually be punished via a lopsided division of property.

What effect does the length of the marriage have on property division?

Although the “length of the marriage” is frequently cited as a reason to grant a disproportionate division of the marital estate, the real reasons are more economic or financial in nature.

Differences in earning capacity become more significant as the ages of the parties advance.  For example, it is less likely that a 50 year old housewife can find gainful employment than her 50 year old corporate executive husband can do so.  Likewise, the physically impaired spouse may incur significant ongoing expenses for treatment that the physically fit spouse does not have in his/her budget.

Generally speaking, realistic predictions of what the future holds for a person after the divorce are more important factors than the length of the marriage.

Is there such a thing as separate property? What does it take?

The distinction between separate property and community property is important because separate property can not be divided or awarded to the other party in a divorce case.

Separate property is most commonly defined as something: a) owned prior to the marriage, b) acquired as a gift, or c) acquired by inheritance.  There are other categories of separate property, but they are less frequently encountered.

The judge must assume that everything the parties own at the time of divorce is community property and, therefore, can be divided.  If either party claims something as separate property, that person must identify the item and prove that falls within one of the definitions of separate property.

Texas marital property is rather complicated and only an experienced lawyer can provide advice concerning a particular set of facts.

Any special rules for the marital home?

Not related to the division of property.  However, the judge will usually attempt to leave the children in their home.  That being the case, the parent with primary possession of the children can expect the judge to award him/her the marital home if it is financially feasible to do so.

The Texas homestead laws are very strong, but issues related to protection of the marital home are related to claims by creditors rather than the property allocation in a divorce case.

How do retirement plans get divided?

Usually the judge will divide them equally between the parties.

A number of factors can affect the value of a retirement plan (income taxes, penalties for withdrawal, etc.) and dividing the plans down the middle avoids those issues.  On the other hand, the judge will always approve an agreement of the parties whether it involves an equal division of the plans or not. Free Consultation

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