One of the most contentious parts of the divorce process is the division of property. States utilize one of two methods either community property division or equitable division. Texas is a community property state, which means property acquired during marriage belongs to both spouses and must be divided equally. Today, we discuss how property division works in the state of Texas.
Is Texas a Community Property State?
Texas is a community property state, so all property a couple purchased together during marriage is subject to division. Texas law defines community property as all the property that either spouse acquires during the marriage, except separate property. Each spouse will be able to keep his/her separate property once the divorce is finalized but will need to divide their marital property and share it equally.
Community Versus Separate Property
Separate property in Texas is anything a spouse owned prior to marriage. Community property is anything a spouse acquired during marriage. Examples of separate property might include property received as a gift.
The law presumes all property to be community property unless and until the party claiming that it is separate property can prove it by a preponderance of the evidence.
How Is Community Property Divided in the Divorce Process?
Texas law states that a judge must divide a couple’s property in a manner that is considered “just and right.” What that means is that the division of property must be equitable under the circumstances. There are many factors that the court considers including but not limited to the following:
- Each spouse’s health
- Which spouse has custody of the children
- Each spouse’s education level and future employability
- Disparity of earning power between the two spouses
How Are Retirement Benefits Divided in a Divorce?
Pensions, retirement benefits, and other employee benefits are considered in community property and subject to division in a divorce. If you receive a portion of your spouse’s retirement benefits, your attorney will prepare a Qualified Domestic Relations Order (QDRO), which will be sent to your spouse’s employer. The employer will need to distribute these benefits to you in accordance with the established court order.
The court does not necessarily need to divide retirement and pension accounts down the middle between the two spouses. Id each spouse has a retirement account, the court might just award each spouse with their own account, especially if these amounts are similar.
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