Property division is an important aspect of most divorces, but the distribution of community property assets and debts between spouses takes on special importance in Texas because of our state’s limitation on availability, amount and duration of spousal maintenance (referred to as “alimony” or “spousal support” in other states).  This primer on property division in divorce provides an overview, but the best way to obtain legal advice about property division issues that pertain directly to your situation is to contact experienced Texas divorce attorney Alex Tyra and to schedule a free consultation.

Distinguishing Community Property from Separate Property

There are two types of states for purposes of property division: (1) equitable property states and (2) community property states.  Because Texas is a community property state, we will focus our discussion on community property.  Community property includes all assets and debts acquired during marriage that are transferred via inheritance or gift to one spouse.  Both spouses have an undivided and equal interest in all community property.

Separate property, which is not subject to division by a Texas court in divorce, includes all property and debts acquired by each spouse prior to marriage or received during the marriage by means of gift, devise, bequest or other form of inheritance.  If property is acquired during the marriage, it is presumed to be community property unless clear and convincing evidence is presented that the property is separate property.  Separate property is not subject to division during divorce but a substantial disparity between the spouses during divorce may be considered when a court is try to determine a fair and equitable division of community property.

Identification, Characterization and Valuation of Assets and Debts

The initial step in dividing assets and debts in a Texas divorce is identifying all assets and debts and characterizing this property as community or separate.  Sometimes property is not exclusively community or separate because these disparate types of assets have been commingled.  Commingled property can present the most challenge because it has both a separate and community property component.  Common examples include pensions, 401K accounts and real properties that are owned by one spouse during marriage but receive contributions from the income of either spouse during marriage.  Income of either spouse during marriage is community property.  When community property is used to improve real estate or enhance the value of a 401K through direct investment and appreciation from such contributions, this creates an asset with both a community and separate property component.

The process of valuing property involves preparing a sworn inventory and appraisement, which is akin to a personal financial statement.  The value of retirement accounts, investment accounts, bank accounts and similar assets are based on a current statement.  Assets like real estate and business interests may require experts to provide a valuation.  Because business valuation experts and real estate appraisers can differ greatly in their opinions regarding valuation of an asset, it is important to be careful in selection of experts for valuation purposes.  If the judge or jury must make a determination on value, an expert who can provide a clear and effective justification for a valuation can be extremely important.

Factors in Dividing Property in a Texas Divorce

It is important to understand that the court is not required to divide community property equally but rather reach a fair and just division.  There are a range of factors that a Texas court will consider when dividing community property, including but not limited to the following:

• Duration of the marriage
• Relative earning capacity of each spouse
• Contributions made to the community estate
• Comparative value of separate property of the spouses
• Age of each party
• Waste of assets committed by either spouse
• Education of each party
• Fault in causing the breakdown of the marriage
• Party with whom the children reside

When both spouses have similar earning capacity and similar expectations regarding duration of employability based on age, the division might be equal but may range to sixty-forty where one spouse has substantially greater earning potential.   The division can be even more unequal depending on the specific facts of the case.  Texas divorce attorney Alex Tyra offers a free consultation during which he can advise you about property divisions or other divorce issues.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.

If you and your spouse are one of the 80,000 couples annually that navigate the divorce process, you may be apprehensive and stressed about an uncertain future.  While the divorce process can be emotionally trying, less conflict usually is better for both spouses and their children where possible.  An experienced Texas divorce attorney can assist you in establishing mutually beneficial resolutions to key issues like spousal support, division of community assets and debts, child custody, visitation and other applicable issues.

When Longview family law attorney Alex Tyra represents clients, he provides legal advice so that his can clients can make informed decisions about when to take an aggressive position to obtain their desired outcome.  Because of Mr. Tyra’s extensive experience handle divorce cases before Texas judges, he can suggest a range of potential outcomes and insight into how a judge will typically rule on a particular issue.  This permits clients to make informed decisions and avoid animosity on issues where there is little if anything to be gained by bitter contentious litigation.

If your divorce will involve developing custody and visitation arrangements for minor children, the value of dealing reasonably with the other parent cannot be overstated.  One important factor that Texas divorce judges look to when developing custody and visitation arrangements is a parent’s ability and willingness to encourage a continuous and ongoing relationship with the other parent.  When family law judges are presented with evidence that a parent is attempting to alienate the child from the other parent, the court will often give such conduct significant weight when developing custody and visitation orders.  The court will apply the “best interest” of the child standard and will generally presume that frequent and continuing contact with both parents is in the best interested of minor children.

While taking the “high road” and seeking an amicable arrangement on custody and visitations orders with the other parent is always preferable because it is easier on minor children, some issues generally promote more contentious disputes.  If either parent has a history of domestic violence, child neglect or abuse, substance abuse or similar types of issues, the safety and well-being of the children may necessitate limited access by one parent or even supervised visitation.  The parent against who such allegations are made often will aggressively contest such restrictive arrangements.  If you are involved in a divorce with these sorts of child custody issues, it is important to have an experienced Texas child custody lawyer because the case may proceed to trial.

Whether you are involved in a divorce with contentious child custody issues or you are seeking to reach an amicable child custody and visitation settlement, Texas family law attorney Alex Tyra offers a free consultation so that he can help you understand your rights and options.  We invite you to contact us in our Longview, Texas office at 903-753-7499 or visit our website and submit a case contact form.