When people contemplate whether to seek a legal dissolution of their marriage, they often focus on the emotional repercussions caused by ending a relationship. Divorce does not only impact people emotionally though; it can have a dramatic effect on people’s finances and assets as well. Although Texas has specific laws delineating how jointly owned property should be allocated in a divorce, it is ultimately within a court’s discretion to determine what constitutes a fair division. As such, it is important for anyone who is debating whether to file for divorce or who was recently served with documents instituting a divorce action to speak with an attorney to discuss what to anticipate with regard to the division of marital assets. At the McClure Law Group, our Dallas divorce attorneys are adept at advocating for our clients’ best interests in family law cases, and can help you develop a strategy for navigating the legal system.
Community Versus Separate Property Under Texas LawThe Texas family law code sets forth the manner in which property should be characterized and divided in a divorce. Specifically, it states that any property acquired by either spouse during a marriage is presumed to be community property. Conversely, any property that either spouse owns prior to the marriage, or obtains via a devise or descent or gift during the marriage, is considered separate property. Additionally, damages recovered for personal injuries sustained by either spouse during the marriage constitute separate property, except for damages obtained due to loss of earning capacity.
If either spouse refutes the presumption that property is community property, he or she must establish that the property is separate property by producing evidence that is clear and convincing. In other words, the evidence must show that it is highly probable or certain that the property is separate. Property can also be defined as separate through a pre-nuptial or post-nuptial agreement between the spouses.
In some cases, parties will comingle separate and community property. For example, if either spouse had a retirement account prior to entering into the marriage, the value of the account before the marriage would be separate property, but any contributions to the account during the marriage would be community property. Determining the value of the separate portion of a property containing both separate and community assets is complicated, and typically requires the retention of a financial expert. A dedicated divorce lawyer can help you identify an expert witness for your case.
Dividing Property in a DivorceAlthough Texas is a community property state, it does not mean that all marital assets are divided equally. Instead, pursuant to the Texas Family Law Code, courts are obligated to divide the marital estate in a manner that is deemed right and just, upon consideration of the rights of both spouses and any children born of the marriage. In other words, courts have the discretion to determine what constitutes an equitable division of marital property. Factors the court may consider in evaluating how to disburse a marital estate include the age and earning capacity of each spouse, the income each spouse earns, whether either spouse is the primary caretaker of any children born of the marriage, and the tax implications of any division of property.
Speak to a Seasoned Divorce Lawyer in DallasThe manner in which marital property should be divided can be a heated issue in divorce cases, and parties often disagree as to what constitutes a fair distribution of marital assets. If you want to seek a divorce or believe your spouse may file a divorce petition, it is prudent to speak with legal counsel regarding your options for protecting your rights and assets. The knowledgeable divorce attorneys of the McClure Law Group can assess the facts of your case and aid you in your pursuit of a fair division of your marital property. We are available to represent parties in divorce matters in Dallas, Fort Worth, Irving, Garland, McKinney, Frisco, Rockwall, and Richardson. Additionally, we can assist people in family law cases in towns in Dallas, Denton, Collin, Tarrant, Rockwall, and Grayson Counties. You can reach us via our online form or by calling 214.692.8200 to set up a meeting.