Court Ordered Division of Community Property

Image of CourtroomAlong with nine others, Texas is a community property state. This means that, during divorce proceedings, a judge will classify all of a couple’s property as either separate or community according to the following general guidelines:

  • Separate property — property that a spouse obtained before marriage, property that a spouse received while married via a gift or will, property that that a spouse receives for personal injuries, or property that a spouse exchanges for one of the previous three types of property.
  • Community property — all property that does not fall into one of the categories listed under separate property. Courts assume that all marital property is community property, so the burden is on the spouse seeking to have a court declare particular property as separate. If he or she fails to do so, the property is community.

Deciding what categories specific pieces of property falls under is an important decision in a divorce. A court cannot divide separate property, but it can divide community property as it sees fit. A Houston community property lawyer can assist you in making the important distinction between community and separate property in a divorce.

Dividing Community Property

No clear rules exist for a court to follow when dividing property. The common phrase is dividing the property as the court deems “just and right”, which means the court will take everything into consideration. “Just and right” usually does not mean a 50/50 split.

Some of the important factors that a court takes into consideration when determining “just and right” include:

  • the health of parties
  • the parties’ education levels
  • their earning capacities
  • the party raising children from the marriage
  • any criminal acts or fraud involved in the divorce
  • which party is paying debts
  • who is at-fault for the marriage’s breakup

An example can illustrate how the community property division works. If, for instance, the wife in a divorce is raising two young children, did not work during the marriage, and would likely require additional education and training in order to attain the earning capacity and lifestyle that the couple had during marriage, a court is likely to award her a substantial percentage (perhaps 70% or greater) of the community property.

As mentioned, Texas is one of the few states that recognize a community/separate property distinction. However, even amongst this select group of states, how family law treats community property can vary. For example, some community property states treat income from separate property as separate property itself, but others treat it as community property. Additionally, there are important tax considerations pertaining to community property decisions in a divorce.

It is important to discuss community property division with an experienced family law attorney. Contact a Houston property division attorney at John K. Grubb & Associates, PC to ensure that your divorce goes smoothly for you and your family.

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