Updated on August 22, 2022
If you are going through a divorce, one of the most challenging aspects may be the division of your marital property. In fact, the division of property has a bad reputation for being one of the most contentious elements of divorce (and divorce can be contentious to begin with).
Better understanding the process by which marital property is divided can help you better protect your financial rights and move through your divorce with increased confidence. In addition, you can enlist the help of an experienced Killeen divorce lawyer to give you the guidance and representation you need for your divorce case.
If you are facing a divorce, a major factor involved is the division of your marital property, but what exactly is marital property?
Marital property refers to those assets that you and your spouse acquired over the course of your marriage. It does not matter who wrote the check or whose name is on the title or deed—if you obtained the asset during the course of your marriage, it is very likely marital property. There are two exceptions to this blanket rule:
Inheritances that either of you receives in your own name only (“Keeping Family Treasures out of the Marital Estate”)
Gifts that either of you receive in your own name only
These properties are considered separate property and will not be divided during divorce.
Separate property refers to those assets that either you or your spouse owned prior to marriage, brought into the marriage with you, and kept separate throughout. It is often this last bit that is the most difficult to accomplish. What often happens with separate property is that it becomes so mired with the marital property that it no longer qualifies as separate property.
Additionally, assets such as retirement accounts that you bring into your marriage with you are separate property, but any increase in their value during your marriage becomes marital property. In other words, it is very complicated. A Killeen divorce lawyer can help you make sense of the tangle of assets involved in your divorce. Contact a lawyer to discuss your case.
The Division of Your Marital Property
Upon divorce, your marital property will need to be divided equitably, which means fairly, given the circumstances involved (rather than exactly equally).
In determining this equitable division of property, the court takes a wide range of factors into consideration. Most of these factors have to do with how well each party is able to support himself or herself (and his or her available resources for doing so).
The court’s general goal is for the property division to help balance each spouse’s financial means post-divorce. That being said, having a knowledgeable Killeen divorce lawyer to represent you will help the court understand your situation better. Contact a divorce lawyer today to get the representation you need for your case.
Each Spouse’s Financial Standing
If one of you will be scraping by post-divorce while the other will have no such problems, the court will factor this into the division of marital property. If one of you owns your own separate, successful business while the other spent the last ten years staying home with the kids (ignoring his or her own career), this financial discrepancy will not go unnoticed by the court.
The younger each of you is, the better able each of you will be to forge a career and support yourselves moving forward. If you are divorcing after many years, however, the fact of your age can make overcoming having little earning potential nearly impossible, and the court will likely address this fact with the division of marital property.
While financial support for your children will be addressed with child support, if your children will be living primarily with one of you, the court recognizes this considerable expense, which may affect its decisions regarding the division of marital property. If you have a child with special needs, the effect can be even more significant.
It is essential to work closely with a Killeen divorce attorney to make sure that your rights and your children are well protected. Call (254) 781-4222 to discuss your divorce case with a knowledgeable attorney.
Typically, attorney fees come out of the marital property, which means they tend to decrease the amount that is left to be distributed between the two of you.
However, if one spouse is determined to unnecessarily increase the legal cost of your divorce—for example, by making the divorce especially contentious or by hiding assets and forcing you to have your attorney engage in investigative efforts—the judge may adjust the division of marital property in response.
Relationship to Creditors
In addition to your marital assets, your debts will factor into the division of your community property, and these will likely be divided equitably between you. The overall extent of your marital debts can significantly affect the division of your marital property.
However, if the debts that one of you assumes are held by a relative or close personal friend, the court may consider the likelihood that this spouse is unlikely to ever be required to pay the debt back into consideration.
Level of Education and Overall Employability
The court will take your level of education—relative to your divorcing spouse’s—into consideration. This is because earning potential is generally closely related to your level of education, and if one of you has a Ph.D. while the other has a high school education, it will very likely play a role in how your marital property is divided.
Your level of education correlates with your employability overall, which can also be a deciding factor in the division of marital property. Other attributes that can affect employability include the following factors:
Overall health (both mental and physical)
The court will attempt to balance any serious discrepancies regarding employability with the division of marital property. Make sure you get the assets you deserve by working closely with a Killeen divorce attorney.
If you are seeking an at-fault divorce and can prove that your spouse is indeed responsible for your divorce, the court can take this fact into consideration when it comes to property division. In fact, in this situation, the court is not bound by the equitable division of property and can grant the spouse who was harmed a more considerable division of the assets.
Listed below are several common causes for at-fault divorces:
Adultery, one of the most common fault-based grounds for divorce
Cruelty, which can include crimes such as domestic violence
Abandonment of at least one year
Felony conviction, regardless of the degree
If your spouse attempts to hide assets, spend down assets, give away assets, or do anything else that artificially reduces the overall value of your marital property, it is considered divorce fraud, and the court does not take kindly to it. If your spouse messes with your finances prior to or during the divorce process (and there are many ways to do so), it is time to take action.
There are many important reasons why the length of a marriage can affect the division of marital property:
The longer your marriage, the more likely your separate assets are to have commingled.
The longer your marriage, the more likely the spouse with less personal wealth is to be financially dependent on the other.
The longer your marriage, the more considerable your overall marital assets are likely to be.
If you are ending a long marriage, contact an experienced divorce lawyer to protect your rights and assets.
Although owning a valuable property is obviously beneficial, it is probably not going to help you come up with the funds to buy a new house or rent a new apartment upon divorce. The court will take the liquidity of the assets each of you acquires into careful consideration—attempting to balance necessary cash flow with the overall value of the division.
Nature of the Property in Question
If one party is far better suited to take over a property and continue to maintain it, the court will factor this in. A spouse who has absolutely no interest in running the family business, for example, is unlikely to be awarded the family business by the court.
Further, if the business that supports your family is a dentist office and only one of you is a dentist, the court will endeavor to offset the other spouse’s share in the value of the dentist office with other assets (while likely awarding the dentist office to the dentist).
Value of Separate Property
Separate property that you establish as being truly separate remains your own and does not need to be included in the division of your marital property. However, if one of you has a considerable chunk of separate property, it can affect how the court decides to divide your marital property.
The court will take the tax implications of the property division into consideration and will strive to ensure that one of you does not walk away with a division of marital property that leaves you unduly taxed. To learn more about these important tax considerations, discuss your case with a knowledgeable Killeen divorce attorney.
The division of marital property tends to be complicated, to begin with, but there are several factors that can make it even more so, and one of these is high assets. The higher your assets, the more complicated their division will likely be for all the following reasons:
High assets are more likely to be complicated and intertwined.
Having high assets means a greater chance of intermingling separate and marital property.
Having high assets often means that the division of your marital property is likely to be more contentious.
Having high assets makes it difficult to obtain valuations that both of you are willing to agree upon.
Having high assets makes it easier for one spouse to hide assets from—or otherwise cheat—the other spouse.
If your divorce involves high assets, it is likely to require more preparation and more time to fairly resolve the division of your marital property. Contact a divorce lawyer for the guidance you need for your high-asset divorce.
Owning a business—even a relatively small business—has the capacity to seriously complicate the division of marital property for many important reasons. To learn more about your options when dealing with dividing a business, read “Will My Spouse Get Half of My Business If We Divorce in Texas?”
Turn to an Experienced Killeen Divorce Attorney for the Legal Guidance You Need
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is an accomplished divorce attorney with the experience, legal insight, and personal commitment to skillfully advocate for your beneficial division of marital property. To learn more about what we can do for you, please do not wait to contact us online or call us at (254) 781-4222 today.