How Will Property Be Divided in a Divorce?

property division

Every state in the United States has their own rules about how to divide property in a divorce. In Texas, there are two types of property for the courts to address: community and separate.

All property is presumed to be community, regardless of which spouse’s name is on the title, account, or deed. In order for property to be considered separate property, the party claiming separate property must prove that the property was owned before the marriage or was obtained during the marriage as a gift or inheritance. Personal injury settlement funds are considered separate property if the funds are for medical bills or pain and suffering. If the funds are for lost wages, then that portion of the personal injury settlement will be considered community property. We will work with you to review each asset and determine the best way to protect what is yours, whether it is community or separate.

The Texas courts divide community property based on a “just and right division.” In most cases, this is a fifty/fifty split. However, the courts can consider various reasons to make an uneven split of the community assets such a fault in the breakup of the marriage, income earning capacity, age and health of the parties, level of education, whether either spouse has wasted any assets or committed fraud, etc.

In most cases, through the assistance of their attorneys and possibly a mediator, divorce parties can reach an agreement regarding how to divide their community property. We assist our clients with reaching an agreement either through informal negotiation or through mediation. We address all assets of the community estate such as dividing the marital home and any other real estate, dividing financial accounts, businesses, high net worth assets, and debts such as student loans, credit card debt and personal loans, etc.

If the parties reach an informal agreement, that is, without going through mediation, we then draft the Final Decree of Divorce with the agreed terms of the divorce incorporated into the Decree and present it to the court for approval. When a Final Decree of Divorce is presented to the Court, with terms that were not reached through mediation, the Court has the discretion to change the terms. However, if we present a Final Decree of Divorce to the Court for approval, with terms agreed through mediation, then, with little exception, the Court must accept the terms of the agreement.

If the parties are unable to arrive at an agreement, then the case will proceed to trial and the judge will decide what property is separate and how the community property will be divided.

Whether we negotiate a fair resolution on your behalf or whether we fight in Court for your fair share, will depend largely on whether the parties are on the same page in terms of a peaceful outcome. Many couples going through a divorce are motivated to get through the process peacefully, especially when children are involved.

Either way, the attorneys of the Garza Law Firm, LLLP have the education and experience to assist you through this journey. We are ready and poised to advocate on your behalf. Contact us today!

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