Division of Property and Debt in a Divorce

Date Published 5 · 24 · 21

I understand going through a divorce is emotionally and financially stressful. You and your spouse have spent years building a life together. During the time you have acquired property and debt. Now it has to be divided. The purpose of this article is to provide you with some information to help you in your case on how the court will characterize and divide the property and debt that was acquired during the marriage.

It is important to divide all the property and debt that was acquired during your marriage in the divorce. Failure to do so may leave you fighting over the property or the debt well after the divorce is finalized. Also, if the property is not divided at the end of the divorce, you will become tenants-in-common or joint owners of the property with your ex-spouse, and that is probably the last thing you want to do once you are divorced.

In Texas, at the end of a divorce, the court must order a just and right division of the community estate. In order to understand what a just and right division of the community estate is it is important to understand the difference between separate property and community property. The community estate is the community property and community debt that is acquired during the marriage.

Separate Property v. Community Property

The Texas Family Code defines separate property as (1) the property owned or claimed by one spouse before the marriage, (2) the property acquired by a spouse during the marriage by gift, devise or descent; and (3) the recovery for personal injuries sustained by one spouse during the marriage, except for recovery for loss of earning capacity during the marriage. Community property is all property, other than separate property, that is acquired during the marriage.

Presumption of Community Property

All property acquired during the marriage is presumed to be community property, and the spouse claiming that some of the property is separate property has the burden to prove the property is the spouse’s separate property.

Just and Right Division

The court is required to divide the community estate in a just and right manner. The court is not required to divide the property equally between the spouses. However, any unequal division of the estate must be based on some reasonable basis. In determining what is a just and right division the judge will usually look to several factors, including: (1) conduct of the spouses, (2) fault in the breakup, such as adultery or physical abuse, (3) one spouse unfairly depleted the community assets, (4) the age and health of each spouse, and (5) the value of each spouses separate property.

Putting it all together

In the divorce, the court must order a just and right division of the property acquired by either spouse during the marriage. If the court fails to divide all the community property and debt, then the ex-spouses become tenants in common of the undivided community property and they will have to return to court or figure out another way to divide the property.

I understand going through a divorce is emotionally and financially stressful. If you are considering or going through a divorce in Texas and would like to speak to me about your situation, feel free to call my office at 361-882-7788 or email izm@iramillerlaw.com to schedule an appointment.

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