Division of Property in a Divorce

Originally published by Susan Smith.

Division of Property in a Divorce in Texas
by Fort Worth Divorce Attorney Susan Smith

Everyone assumes that community property will be split 50/50 during a divorce. Yet, this assumption is wrong. When going through a divorce, a judge will divide community property according to a “just and right” division.

So what is community property? Simply put, it is everything a couple acquires together in during a marriage. This can include retirement accounts, homes, cars, earnings, etc.. Community property is better defined by what it is not. Community property does not include property received by gift or inheritance. Nor does it include property that was owned or acquired before the marriage. During a divorce, the court is not allowed to divide a person’s separate property.

There is a presumption that property possessed during the marriage is community property. To overcome this presumption, a party must show by “clear and convincing” evidence that the property is separate. “Clear and convincing” is an intermediate standard of proof that falls somewhere between the preponderance standard for civil trials and the reasonable doubt standards for criminal court.

Everyone assumes that community property will be split 50/50 during a divorce. Yet, this assumption is wrong.

A “just and right” division of community property can be influenced by many factors including, but not limited to the spouses’ earning capacities and abilities; business opportunities; relative physical conditions; relative financial conditions and obligations; age of each spouse; and the earning ability of each spouse independently. The court may look to see which person is at a greater disadvantage in terms of living separately due to the marriage and may award a larger share to that spouse. Additionally, a court could consider whether or not one party is more at fault than the other for the break-­‐up of the marriage. Fault grounds include adultery and domestic violence.

If a divorce results in a disproportionate award of community property, the “losing” spouse can appeal the division to the appellate court. The appellate court will generally construe facts in favor of the trial court’s decision, but can review issues of law without any similar constraint. The trial court’s decision will be given great deference, but can be overturned if it can be shown that the decision was arbitrary and capricious. If the appellate court believes that there was error, it can reverse the trial court’s judgment and order a new trial or go ahead and divide property itself (assuming the evidence in record supports the new division). From there, the parties can continue to pursue the appeal to the Texas Supreme Court (or even to the U.S. Supreme Court), or they can accept the terms of the appellate opinion and carry out its mandate.

If you have any questions regarding division of property in a divorce or the appellate process, call Susan Smith at Varghese, Summersett & Smith, PLLC at (817) 203-2220.

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