Dividing property in a divorce

During a Texas divorce, only property that is classified as marital will be divided between the two parties.

Getting a divorce in the Dallas area, or anywhere for that matter, will likely require a lot of back and forth communication between the soon-to-be ex-husband and wife. They, with the help of a judge, will have to divide their earthly possessions. Part of the division of property during a divorce is determining what elements are marital property and what are separate property.

What is marital property?

Marital property, also referred to as community property, is the property that was acquired during the marriage, according to the Texas State Historical Association. This means money earned through salaries, separate retirement funds or the sale of property could be considered marital property so long as the couple were married at the time of the acquisition. The same is true for any property that was purchased during the marriage with marital money, regardless of whose name is on the title or deed.

What is separate property?

The Texas Young Lawyers Association's definition of separate property includes the following:

  • Gifts or inheritance given solely to the husband or wife during the marriage
  • Possessions purchased by separate property funds during the marriage
  • Money or possessions owned by either the husband or wife prior to the marriage

Unless the separate property is co-mingled in a way that makes it untraceable, these objects will not be divided during a divorce. Instead, this property is retained by the spouse who has ownership, provided that the spouse claiming that property is separate is able to trace the property by clear and convincing evidence to one of the sources of separate property listed above.

For example, if a husband enters a marriage with $10,000, that property would be considered separate. If that money was then put into an account that also held the wife's money, the separate property would lose its identity and would become marital property. One way to preserve the separate status of the money would be to draft a prenuptial agreement that states which property is solely separately owned by each spouse at the time of the marriage. Postnuptial agreements can also be used to establish separate ownership of property or funds if the couple is already married.

How can married couples keep property separate?

The American Academy of Matrimonial Lawyers suggests that married couples can retain separate ownership without a prenuptial agreement by keeping isolated bank accounts, proper documentation and a true separation of the property. However, to keep this separation valid, only marital property should be used to pay for marital expenses.

When property is divided during a divorce, the court is supposed to try to do what seems "just and right". Not all property will be divided in half because there are other considerations that have to be made, such as allegations of fault by one spouse against another with requests for a disproportionate division of the estate. However, when property is improperly classified or hidden, the courts may not have the necessary information to make a just and right ruling.

Because Texas is a community property state, the division of property may seem fairly straightforward even when it is not. Working with an experienced Board Certified family law specialist divorce attorney who has been certified as an expert in the field of Family Law by the Texas Board of Legal Specialization helps to ensure that each party really gets the property that they are entitled to.