Providing the legal answers to your family related concerns.

How is Community Property related to Texas Divorce Property Division?

If you are getting a divorce in Texas, it is very likely that the property and debts you and your spouse will be subjected to are the community property laws of Texas.  Texas law states that all property acquired during marriage is presumed to be community property.  This means that each spouse has an ownership interest in one-half of all property obtained during the marriage.  Division of this property can be very complicated.

The property division attorneys at Warren & Migliaccio have significant experience with helping clients sort through the Texas community property laws and protecting their assets during divorce.

Separate Property in Texas is usually not divided by spouses.

Each spouse is entitled to KEEP THEIR OWN separate property.  Separate property includes any property acquired before the marriage, gifts, and inheritances.

If your property is considered separate property and the value of the property increases, the increase in value is still considered separate property.  An example of this would be a house that you acquired before marriage raises in value.  The enhanced worth of the house is still separate property even though the boost in value occurred during the marriage.

It is also possible for separate property to become community property during the marriage due to commingling.  Commingling means that you mixed your separate property with community property.  An example would be putting money that is considered separate property into an account with community property funds.  If you can not distinguish the separate property money from the community property money, it is presumed to all be community property.  Of course, if you are able to trace back the separate property funds, then it can retain the separate property status.  This can get complicated.

How Are Community Property and Debts divided?

The Courts in Dallas and Collin County prefer that you and your spouse decide between yourself how your community property and debts are divided.  If this is not something that can be done, the Court is required by Texas law to divide the property in a just and right manner.  This does not necessarily mean the property will be divided equally.  In fact, there are several factors that could persuade the Court to divide the property and debt unevenly.  Some of these factors include:

1. Whose fault is the breakup of the marriage (infidelity)
2. Special needs of children
3. Age and health of the parties
4. Earning capacity and education level of the parties.

Retirement Accounts and Community Property Division

Yes, even retirement accounts are subject to Texas community property laws.  This process can be very complicated and it is advisable that you speak with an attorney regarding how this may affect your divorce.

In most cases, the value of the retirement account that is considered community property, is determined by taking your retirement account value on the date of divorce and subtracting the value of the retirement account value on the date of marriage.

To illustrate this, if your spouse had a 401k that was worth $10,000 on the date you were married and on the date of the divorce, the 401k’s value was $40,000, the total community property value of the 401k would be $30,000 ($40,000 minus $10,000).  It would be presumed that you would be entitled to one-half of the $30,000 or $15,000.  There are special orders, known as Qualified Domestic Relation Orders (QDRO’s), which facilitate removing community property funds from retirement accounts.

If you have questions regarding community property division in a divorce, Contact Us: Your Family’s Law Firm, Warren & Migliaccio, LLP Attorneys at Law.

Credit Cards Accepted