During a Texas divorce, one major issue to deal with is the division of
the spouses’ assets and debts. There are several steps that must
occur during such a division. First, the assets must be identified. This
is typically done by completing a sworn inventory and appraisal which
lists all of the assets and debts owned. Once the property is identified,
the next step is to characterize the property. Before going into characterizing
the property, it is crucial to understand that Texas is one of a handful
of states that has “community” property.
Community property is defined in the negative and includes all property
acquired during marriage except for property acquired by gift or inheritance.
Separate property is property that is owned
prior to marriage, or property that was acquired during the marriage by gift
or inheritance. The distinction between community property and separate
property is critical because the court divides the community property
between the parties but cannot do so for separate property.
Once all of the assets have been identified and characterized, the court
can make its division. The effect of the division of the property is to
give each spouse with the exclusive right of possession of the specific
property awarded to them. In Texas, all community assets and liabilities
are subject to a just and right division. The just and right division
is based on the facts of each case and is not necessarily a 50/50 split.
In fact, disproportionate divisions are relatively common. Whether a court’s
division of the community assets and liabilities is a just and right one
is determined by the net value of assets each party receives – not the
quantity of the assets.
As stated above, the court considers many factors in making the just and
right division of the community assets and liabilities. Even though Texas
does not require fault to get a divorce, courts consider fault in the
breakup of the marriage when making the division. The other general factors
that a court considers in making its division are:
- The parties’ abilities to support themselves;
- The financial costs incurred by a party while the divorce is pending; and
- Length of the marriage.
When making the division the court does not necessarily have to split each
asset. What this means is that if one party gets the house, the other
could be awarded an interest of equal value in a retirement account.