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How Does Property Division Work in the State of Texas?
Ryan R. Bauerle | December 11, 2020
What is the difference between community property and separate property? Plano family law attorney Ryan Bauerle answers clients’ most frequent questions about property division during a divorce.
For more resources on property division, please visit our Property Division page, or our property division articles.
I’m Ryan Bauerle. And I’m a partner in Goranson Bain Ausley.
It is critical for anybody going through a divorce to understand how property division works in the State of Texas. Perhaps the most common misconception is that anything remotely related to the parties is simply split down the middle and for a variety of reasons that simply doesn’t usually bear out to be the truth. So the purposes of this video is to explain what a client is looking at when they go through a divorce whether try and reach an agreement or they have to take it to the courthouse.
So the next question becomes what can the court actually divide? The court can only divide what is called community property.
You have to compare what community property is versus separate property. Thought about it in one way, the community property is anything that is accumulated or acquired during the marriage. And anything that was accumulated or acquired during the marriage is put into a pot that the court can divide, that can include a house, a car, certain types of retirement accounts, bank accounts, a paycheck, all that goes into a pot which the court can divide. One thing that does not go in that pot is separate property and the court cannot take somebody’s separate property. So separate property can entail gifts between the spouses, so if somebody buys their spouse a purse, a watch, a piece of jewelry that is the receiving spouse’s separate property and the court cannot take it from them. The same rule with gifts also applies to receiving if they’re not from that spouse. So if the husband gets a gift from his dad that is the husband’s separate property that cannot be taken from him. Additionally, anything inherited is also separate property and most commonly anything that was acquired before the marriage is somebody’s separate property. So if somebody had a house before they were married simply by becoming married that doesn’t change the characterization of that separate property house, it still belongs to the spouse that owned it before the parties were ever married. Finally, there are certain types of personal injury recoveries that are always going to be separate property, usually these exclude situations where there are injury recoveries lost wages or earning capacity.
Contrary to popular belief the court will not always simply divide the community property estate equally between the parties. Most people just seem to think we’re married, it’s 50/50, that is not true. Nowhere in the family code does it say anything about 50/50 or any other percentage point. Rather the family code simply says the court shall make a just and right division, and it’s based on a myriad of different factors. Now most of the time, are you typically looking at an equal split? Yes. However, there are several other factors that can affect the court’s decision as to whether or not to award a more or less than 50% share to either spouse.
If you have any questions about property division or any other issues regarding any divorce or custody matter, please feel free to contact me, Ryan Bauerle, at 214-473-9696.