How Is Property Divided During a Pandemic?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

The question of how property is divided during a divorce is an always relevant one. For those of you who are fairly new to the topic of divorce, there are basically two stages or two parts of a divorce. The first part deals with children and custody of children That had been born out of that particular marriage. The second part of a divorce that is relevant to our discussion today is property division, the community estate as well as division of marital debts. This is a subject that many overlook during the initial stages of a divorce due to the heavy emphasis on children and adapting to life during a divorce.

Divorces are serious matters no matter what the facts and circumstances of your particular case are. No matter what is at stake from a property division perspective it is important to your present and future that you be aware of how property is divided and what positions you are able to take during a divorce in relation to property. It can be argued that it is even more important for you to understand the significance of property and money issues during the middle of a pandemic. While these sort of topics are always relevant and always important, we feel financial issues more acutely in abnormal times like the one that we are living through right now.

If you are considering a divorce right now, then you absolutely need to be aware of how property is divided in a divorce. Once you have learned the basics of property division in a Texas divorce then you can become more aware of how these general principles of Texas family law apply to you and your family. The interesting thing about property division in a Texas divorce is that the law allows for spouses to become very creative in a divorce to create solutions to problems that arise in this area. However, you will not be able to fully engage in this type of negotiation during the divorce unless you have a firm basis of knowledge from which to proceed.

Community property basics in Texas 

before we go any further in our discussion today, we need to establish the basics when it comes to property division in Texas. this may not be exactly where you want to begin especially if you are on the precipice of filing for divorce or are in need of filing an answer to a divorce that was just filed against you. You may feel like there is a certain amount of pressure on you to learn as much as you can in as short a time as you have been given. It’s sort of like the need to drink water from a firehose. Your instincts are telling you that you need to take in as much information as possible right now before it’s too late.

I would recommend that you not give in to the temptation of jumping too far ahead when it comes to practical advice in the property division during your divorce. The simple reason being that you need to know the basics of this subject before you can get into anything complicated. The laws in Texas concerning divorce are not unlike anything that we learned in school. He didn’t learn trigonometry in first grade, and you didn’t start reading Shakespeare’s plays in kindergarten. Rather, he learned the basics of each subject and then progressed into more in depth material. I am assuming that you are walking into this divorce without any specific knowledge of property division in a Texas divorce. That is where we are going to begin The meat and potatoes of today’s blog post.

The most fundamental aspect of property division in a Texas divorce is that Texas is a Community property state. Most states in the United States are what is known as common law states when it comes to property division. This means that courts in those states will divide property in a divorce in a somewhat equitable fashion in terms of whose name appears on the title, loan or other financial documents associated with the property. In this way property can be divided according to who’s income purchased the particular item.

For example, it is a lot more important in Indiana for Ohio in dividing up a home or vehicle to see whose name and whose income went towards the purchase of that vehicle. Parties in these states know that the spouse who earns more money and whose income is purchased more property will tend to take home that property in a divorce. As a result, you tend to see property being divided in a way that is much more uneven but may be argued to be fairer.

Texas counts itself among twelve other states who adhere to community property principles in divorces.  Most significantly Community property law In Texas assumes that all property in place for two persons going through a divorce is community owned property. Community owned property in Texas is divided up not according to whose name appears on the property but in a more equitable fashion. Let me give you a short example to illustrate this point.

Using the marital home as an example of community property law in Texas

Suppose that you and your spouse purchased a family home when you first got married 12 years ago over the course of time you stayed home as a parent in Wife and took care of the home while your husband went and worked. During that time, you earned no income but contributed to the household by raising children, keeping up the home and providing many essential functions of that type. Recently your husband filed for divorce against you and you are now concerned with how the equity in that home will be divided if you all choose to sell the home in your divorce. Will you walk away with nothing because your name is not on the loan To the home and your income did not contribute to the paying down the mortgage?

The simple answer is that despite your having not contributing monetarily to the home you still have a distinct ownership interest in the home. It doesn’t matter if your name is not on the mortgage Nora doesn’t matter if your name isn’t even on the title to the home. As long as the home was purchased during the course of your marriage and the income used to purchase the home was income earned at your spouse’s job then that home will be classified as Community property in the divorce. Therefore, it is subject to being divided up ask Community property and you have an ownership interest in that home.

Given the presumption towards all property owned at the time of your divorce being Community property evidence must be submitted to the contrary if either you or your spouse wish to prove that a particular piece of property should not be divided in the divorce. For example, despite the presumption that property purchased during the marriage is Community property if that property is shown to have been purchased with money that was gifted specifically to your spouse , or to you for that matter, then the property purchased or the money received would be classified as either your spouses or your own separate property. Separate property is not subject to division in divorce. Separate property also counts as any property owned by either you or your spouse prior to your divorce. If there is disagreement as to whether or not a particular piece of property is owned by community or is done separately by either you or your spouse, the party arguing it’s separate nature must present evidence to that effect.

How can you expect property to be divided in your specific divorce? 

Now that we have established the basics of Texas Community property law, we can discuss more in depth how you could expect property in your own divorce to be divided up. Many people understandably assume that property in a divorce, if it is in a Community property state like Texas, must be divided exactly 50/50. I can very much understand this assumption and the truth is many times property is divided up in a pretty close to 50/50 fashion. However, that does not necessarily have to be the case. Here are some factors that may be relevant to your divorce and the nature of how property is going to be divided.

One of the most significant factors that I can consider in writing today’s blog post is whether or not fault grounds will be relevant to you and your spouse. If adultery, financial malfeasance, abuse, abandonment or other specifically listed reasons for divorce are apparent in your case then the property in your case may be divided up in a manner that is not necessarily straight down the middle. Why is this the case?

Courts tend to look negative leopon Persons whose actions went above and beyond in breaking up a marriage. For instance, if your spouse committed adultery against you, used community resources to buy gifts and other presents for their Paramore and harmed you, your children and your finances as a result it is likely that a judge in a Texas family court would be willing to award you what is known as a disproportionate share of your community estate as a result. What this basically means is that you would be in a position to receive greater than 50% of the Community property given your spouse’s role in the breakup of your marriage.

this does not mean that every active infidelity or every instance of wrongdoing in a marriage will lead to a disproportionate division of the community estate. I don’t want you to leave this blog post thinking that because your spouse cheated on you or you cheated on your spouse that there is nothing else relevant when it comes to property division I’m here to tell you that there are almost always more than one factor considered in dividing a property and adultery isn’t necessarily a factor that will cause it disproportionate reward. However, it often times does in it certainly merits mention here.

The last factor that I wanted to mention Which is relevant to many divorces is your future prognosis for income and financial stability and that of your spouse. If we go back to our example where I hypothetically listed your spouse as the one who would go out and work each day while you would stay home and care for the family then You may be looking at a circumstance where you will need to go back into the workplace or start working for the first time as a result of your divorce. In light of circumstances like these how may Texas family court divide up your community estate?

In my opinion it is much more likely that a court would provide you with a disproportionate share of your community estate given the above circumstances. This is due not only to fairness and equity but also acknowledges that your spouse is in a better financial position then you are from an educational, job experience and career perspective. Family courts in Texas are typically not overly excited too award spousal maintenance after the conclusion of a divorce. With this in mind, a judge would probably be more willing to award you a greater stake in your community estate in order to help you get on solid footing in the immediate time period after your divorce.

Questions about property division in a Texas divorce? Contact the Law Office of Bryan Fagan  

If you have any questions about the material presented in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone and via video. We are here to serve you now and into the future. Thank you for showing an interest in our law office and we hope that you have found today’s blog post to be entertaining and full of practical information for you to use in your own circumstances.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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