Property Division

Texas Property Division & dissolution of marriage 210-299-4777

Don’t Risk Your Home, Savings Or Retirement

Following a divorce, the court must the division of property the spouses own. Before legislatures equalized property allocation between both spouses, many dissolution of marriage 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 dissolution of marriage.

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.

What’s the general rule of property division (equitable distribution, community property, or legal title) & dissolution of marriage 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 dissolution of marriage 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 dissolution of marriage.

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 dissolution of marriage 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.

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