Frequently Asked Questions about Division of Property in Divorce in Texas
Q: When we get divorced, do I have to give half of everything I have to my spouse?
A: Generally, no. Many people have heard stories in the press about celebrities who are forced to give half of their assets to their spouse when they get divorced. In reality, the situation is much more complex.
When you get divorced, you get to keep all of your separate property. Generally, your community property is split equally between you and your spouse.
Q: What are the differences between "community property" and "separate property"?
A: Community property encompases the vast majority of assets collected by a married couple during the course of their marriage. Common examples of community property include the following:
- Wages and salaries earned during the marriage by both spouses (including property purchased with those funds)
- Most assets purchased during the marriage using community funds or separate funds.
Separate property generally includes most assets brought into the marriage. If you owned a car, house or other property before you were married, those items remain your separate property unless or until you commingle them with community property to give part or all of them to your spouse as a gift. In addition, any property or funds you inherit, even while married, remain separate property so long as you avoid commingling them with community property or funds.
Q: Wait a minute... are you saying that just because my spouse purchased a home right before we got married, that I don't have any claim to the home despite all of those payments I helped to make?
A: The situation described here is all too common. Today, many married couples bring various assets into the marriage, including vehicles and homes. In most cases, however, those same people have financed those assets and are continuing to make payments on them. Remember that all earnings during the marriage are community property, and therefore owned equally by each spouse. Therefore, payments made toward a vehicle or a house using earnings during the marriage are considered economic contributions from community property to separate property.
Anytime the community property contributes to separate property, a spouse may be entitled to reimbursement of those contributions upon a divorce. The property continues to be characterized as separate property, but the spouse owning that property must reimburse the community estate for the payments made into that property.
Q: The house and cars are in my spouse's name. Doesn't that mean it is hers (or his)?
A: When it comes to determining whether property is characterized as community or separate property, it is mostly irrelevant to look at whose name is on the title. What matters is when those assets were purchased or how your spouse managed to pay for those assets.
Don't let your spouse bully you by saying, "Well, it's in my name anyway." That doesn't matter. If it was bought during the marriage, you probably own half of it.
Q: Can my spouse and I agree on how to split up our property?
A: Absolutely. In fact, you will both be better off if you can decide exactly how to split up the community property before getting divorced. Although child custody is the most highly contested aspect of any divorce involving children, the battle over property comes in a close second in terms of the stress and combativeness of spouses seeking a divorce.
If you can figure out a way to divide your assets without selling them, you will usually come out ahead. This is especially true when it comes to real estate. It often takes several years for a home to accrue enough equity to offset the closing costs and other expenses associated with the sale of the property. Unless you have lived in a house for several years, you might be better letting one spouse take the house in exchange for allowing the other spouse to have other community assets in order to divide the community estate equally.
Q: My spouse was at fault for the divorce. Shouldn't I be compensated for that?
A: If you can convince a court to grant you a divorce on the basis of a fault ground (e.g., divorce, abandonment, conviction of a felony, etc.), then you may be awarded a larger portion of the community estate in order to compensate you.
Keep in mind, however, that the court is not obligated to grant any divorce on the basis of fault, and may still grant a "no-fault" divorce, even if you have proven that your spouse was at fault.
Q: I still have questions. Who should I contact?
A: The lawyers at Patel & Warren, PLLC will be more than happy to answer your questions. Please call our office at (713) 893-1667 or contact us online to discuss your particular case in detail.
