In a divorce, one of the most important issues is dividing all of the property, assets, and debts that a married couple has accumulated over the years. One of the scariest questions facing a person seeking a divorce in Texas is what can I keep for my new life and what will I have to give up to my former spouse? That is because, when considering a divorce, whether a party can survive afterwards, financially, is often a key factor in deciding whether to go forward. So, what does the law in Texas say regarding dividing assets after divorce?
It is often said that Texas is a “fifty-fifty state”, insinuating that half of the assets will go to each spouse upon divorce. But that is not the law. Under the Family Code, property accumulated during a marriage is to be divided in a “just and right manner.” In practice, this often ends up being a fifty-fifty split, but judges are not required to split the property equally. When dividing assets in a divorce, Texas judges may take into account a number of factors in determining what a “just and right” division should be in a particular case. Some of those factors are:
- fault in the breakup of the marriage;
- disparity in earnings capacity and the spouses’ ability to provide for themselves;
- the relative education of the spouses as related to future employability;
- community debts and liabilities;
- the relative spousal earning power, opportunities in business, and their capacities and abilities;
- the nature of the property involved in the property division; and
- whether there has been a wasting of community assets by a spouse.
If a lot of these factors break in the direction of one party over another, the division of assets can be unequal. It is ultimately up to the court and the judge to decide whether any of these factors apply in a particular case and how they will affect the property division.
Once you understand how the court divides the property in a divorce, the next thing that is important to understand is what property is included in the division of assets and what property is not. All assets that are acquired or that accumulate during the marriage are divisible upon divorce. This can include investment accounts and retirement accounts that are funded solely by the income of one spouse.
On the other hand, any property that is acquired prior to the marriage, or that is gift from a spouse’s family member (including a gift from a family member’s will) is separate property and is not divisible in a divorce. Oddly, this can even include gifts from one spouse to the other.
Knowing your rights is a critical part of deciding whether or not a divorce is right for you and how a divorce will affect your life. If you face the prospect of a divorce and want more information regarding your unique situation, please contact us and schedule a consultation.