The divorce process can be an overwhelming ordeal for everyone involved. One particular overwhelming (or even confusing) aspect of divorce is the subject of separate and community property.
The ruling as to who gets what depends heavily on which state you live in. Even though most divorces are amicable, they may turn sour when dividing up property. Just because you have your name on a title does not mean you will automatically keep that property.
Who gets ownership of a piece of property during a divorce depends on a couple of things:
- Whether or not the assets qualify as a couple’s marital property or the property of one spouse.
- Whether or not the couple lives in a “community property” state, or an (equitable distribution) state.
Community Property
In the state of Texas, all earnings and property that are acquired by both spouses during a marriage are considered to be community property.
Just because you paid for something with your personal income does not mean that it is automatically considered separate property. The same stands true even if you have your name on any of the following:
- Account
- Note
- Contract
- Title
If something was purchased between the day of your marriage and the date of your divorce, it is considered community property. The only exception to this would be:
- An inheritance
- A gift
- A personal injury settlement
Here are some examples of community property in the state of Texas:
- Any income you receive from employment, which includes: salaries, wages, tips, overtime pay
- Any real estate purchased during the duration of the marriage
- Any vehicles purchased during the duration of the marriage
- Contributions you may have made during the duration of the marriage to a 401K or any type of retirement account
- Compensation for unemployment or payments for lost wages made during your marriage.
- Checking and savings account balances
Separate Property
It is pretty clear in the state of Texas, that everything acquired during the duration of a marriage is considered community property. You must have proof to claim something as separate property.
Your spouse can also agree with you that a piece of property is separate, eliminating the need for further proof.
Basically, separate property is any property you owned before your marriage. As stated above, some forms of separate property that can be acquired during a marriage include:
- An inheritance
- A gift
- A personal injury settlement
Here are some examples of separate property in the state of Texas:
- A vehicle you received as a gift from your parents
- A house that you purchased before the day of your marriage
- Any contributions you may have made to a retirement account before your marriage
You may have purchased a car or house before your marriage; however, there may be car payments or mortgage payments that need to be made once you have gotten married.
The money used to make these payments would then be considered community funds. This means the “non-owning” spouse can request reimbursement for any money that went towards these payments for your separate property.
How the Court Divides Property
There is no requirement that the court must abide by to equally divide marital property. The court’s only requirement is to make a “just and right” decision. The court’s decision can be based on factors such as:
- The needs of any children — this can include their basic necessities, food, and education
- The earning capacities of you and your spouse
- Any fault (that was stated in the divorce petition) that contributed to the ending of the marriage, such as infidelity
- Which parent has custody of the children
You and your spouse may be in agreement on a division of property in debt. If that is the case, it is very likely that the court will approve the agreement as “just and right”.
In this case, if you are awarded the property in the agreement, you would assume full responsibility for any debt that may go with it.
Marital Debt
Debt created during the marriage or liabilities incurred during the marriage are considered marital debt. This can include:
- Credit cards
- A mortgage
- Car note
- Student loans
- Personal loans
- Medical debts
Once again, the court is only required to make a “just and right” division of debt — meaning the debt will not necessarily be divided equally between you and your spouse. The court’s decision will be based on the individual circumstances of you and your spouse.
A car may have been purchased on credit by you or your spouse during your marriage. Since it was purchased during the marriage, it is considered community property and can be awarded to either you or your spouse by the court.
However, the court cannot get the name of any spouse removed from the contract that created the debt.
Marital debt and dealing with creditors once you have gotten a divorce can be a complex situation. That is why it is best to consult an experienced divorce attorney.
Contact Our Texas Divorce Attorney for Advice Today
JulianJohnson, P.C. offers personal attention to people in need of family law attorneys in Flower Mound, TX, and the surrounding cities.
If you need help with any family law matter, Jared Julian is available — he has been helping families for more than a decade and is also a licensed mediator.
This makes him a professional in settling family disputes. As an experienced family mediator, he listens to both sides and makes an informed decision that is in the best interest of all parties.
Mr. Julian and his team of experienced family law attorneys are available for a consult. Contact us today.
When faced with a heated situation such as the dissolution of a marriage, call a lawyer with compassion, knowledge, and experience with the legal system.
