Community Property and Divorce
In Texas, marital property is called community property, and in the event of a divorce, the intention is to divide this property equitably. Equitably means fairly in relation to the given circumstances. Ultimately, divorce breaks down into financial concerns and child custody concerns, and these extremely complicated components tend to intermingle. It is important to note that your marital property's division is likely to impact your financial future significantly and should be given the careful legal attention it deserves.
Community Property vs. Separate Property
While community property is divided equitably between you upon divorce, the property you bring into your marriage with you (and keep separate throughout) will remain your own separate property. While this seems like a clear dividing line, it must be noted that this division has a way of blurring over the years. For example, if you own a small business when you marry and carefully keep that business as separate property throughout your marriage, you will still need to address any increase in value the business experienced during your marriage, which will likely be considered marital property. In fact, several factors that tend to complicate the division of marital property include:
A long marriage
Ownership of multiple properties
Once you establish which assets are community property and which are separate, you can begin the complicated process of equitable division.
Dividing Your Community Property
The court will take several important factors into consideration in its determination regarding the division of your marital property (if you and your divorcing spouse are unable to agree on terms of your own). These factors include:
You and Your Spouse’s Ages – The younger you are, the more likely both of you will be to move forward with equal footing regarding your capacity to earn a living.
Whom the Children Will Live With – If the children will be living primarily with one of you, the court will factor this into your division of marital property. It is universally understood that children are expensive and require three meals a day and a roof over their heads (to start).
You and Your Spouse’s Employability – The court will take your employability into consideration. If, for example, you married early and stayed home with the children while supporting your spouse’s education and career, it is very likely that you will be far less employable than your soon-to-be ex, and that can significantly affect the division of your marital property.
Fault – Although most divorces in Texas are not predicated on fault, the court can take fault into consideration in the division of marital property.
Ultimately, the court will attempt to leave each of you with a fair division of your marital property that reflects your individual ability to move forward financially post-divorce.