Complex Property Division

In most divorce cases, one of the most contested issues is the manner in which property should be divided. In Texas divorce actions, property is categorized as either separate or community property. Although in many cases determining the nature of property is a straightforward process, in cases where the nature is disputed or separate and community property is commingled in a single asset, property division can be a complex and involved process. If you wish to pursue a divorce, it is advisable to retain skilled legal counsel to help you seek a just and equitable distribution of any real estate or other assets you or your spouse acquired during your marriage. At the McClure Law Group, our Dallas divorce lawyers are assertive advocates for our clients, and we will work diligently to help you pursue your desired legal result.

Under Texas law, property obtained during the course of a marriage by either spouse is presumptively community property. If one spouse argues that property presumed to be community property is in fact separate property, he or she must prove the separate nature of the property by presenting clear and convincing evidence. Separate property includes any property either spouse owned prior to the marriage and any acquired during the marriage by one spouse via a gift, devise, or descent.

In many divorce cases, complex property division issues can arise due to the fact that one or both spouses have both a separate and community interest in a property. For example, if a person receives a damages award in a personal injury lawsuit during the marriage, any portion of the award that is remuneration for loss of earning capacity will be community property while the remainder will be separate property. In cases where there is not a clear delineation of what the award is meant to compensate for, the characterization of a damages award can be a contentious issue. Complexities can also arise when a person purchases property prior to the marriage but both spouses contribute to any outstanding mortgages on the property or to the maintenance and upkeep of the property during the marriage. Similarly, if one spouse contributed to a retirement plan or was a participant in a stock option plan prior to the marriage, a portion of his or her retirement benefits will be separate property.

In cases where the characterization of a property is disputed, Texas applies the inception of title rule. Under this rule, the characterization of a property is based on the manner and time in which a person first obtains interest in a property. For example, if a person purchases a property prior to the marriage, it is separate property under the inception of the title rule. Separate property will remain separate, even if it is exchanged for other property. In other words, if a person who owns a home that is separate property sells the home and places the proceeds in a bank account, the proceeds will remain separate property.

The party arguing that property is separate under the inception of title rule after the property has changed form bears the burden of tracing and clearly identifying the separate nature of the property. If the separate property has been combined with community property, the presumption that the property is community will prevail. In most cases in which the characterization of a property is disputed, it is necessary to engage the services of a forensic accountant to trace the nature of the property from the time it was obtained. If you live in Dallas and you intend to seek a divorce, it is wise to retain a seasoned divorce attorney to help you accurately assess the character of any property owned by you or your spouse.

Under Texas law, you are entitled to a just and equitable division of any community property. In divorce cases involving complex property division, it is important to retain an experienced divorce attorney to advocate on your behalf. At the McClure Law Group, our legal team is proficient at handling divorce cases involving complex property division and will work diligently to help you assert your rights. We represent parties in divorce and other family law matters in Dallas, Fort Worth, Irving, Garland, McKinney, Frisco, Richardson, and Rockwall, and in other cities in Dallas, Grayson, Collin, Tarrant, Denton, and Rockwall Counties. We can be reached at 214.692.8200 or through our online form to set up a meeting.