Texas is one of nine states with what are known as community property laws that require marital estates to be divided equally when married couples divorce. In the rest of the country, marital assets are divided equitably but not necessarily equally in divorce cases. The marital estate subject to division in a Texas divorce is made up of the assets acquired and the income earned between the date the couple got married and the date they physically separated with the intent to divorce.
This means that assets the spouses owned and the money they earned before they got married is considered separate property and is not usually subject to division. Certain assets acquired during a marriage, such as inheritances and gifts, are also considered separate property. However, separate property may be divided in a divorce if it became commingled with marital assets. This could happen if an inheritance or gift is deposited in a joint bank account or marital income is used to maintain or improve a separate asset like a home or automobile.
There are a number of exceptions to the strict equal division rule. Educational debts acquired during a marriage are considered separate property in a divorce, and judges may decide against equal division in situations where divorcing spouses have misappropriated or squandered community property. When the community liabilities exceed the value of the marital assets, which is known as a negative estate, the debts are divided based on the spouses’ ability to pay. This is done to protect creditors.
Determining which assets are community property and which assets are separate property is often a contentious process in Texas divorces. Experienced family law attorneys may encourage divorcing spouses to do all that they can to reach an amicable property division settlement. This is because there is no guarantee that they will be happy with the outcome if these decisions are left up to the court. When negotiations are at an impasse and progress looks unlikely, attorneys may suggest pursuing an alternative approach such as mediation.