The division of property is, from a purely legal standpoint, one of the more simple aspects of divorce. There are typically two types of property under Texas law, community property and separate property. Separate property is property you had prior to marriage, property you acquired as a gift, and property you acquired through inheritance. Separate property remains your property after divorce.
Community property is all other property, most simply summarized as property you acquired during the marriage and that property which is not separate property. Sometimes, a third category of property exists, so to speak, which is referred to as a mixed asset– one which is part community property and part separate property. In that situation, it is our lawyers will determine which part of the property is classified as separate and which part is classified as community.
Once the proper classification of property has occurred, we may then begin to analyze a fair property division. Texas law requires that only community property is subject to division in a divorce, which is why the classification of property is critical. Further, as for community property, Texas law simply requires a court to make a “just and right” division of marital property. What is “just and right” depends on many factors. For example, it is often that one spouse has a higher earning capacity than the other spouse-either from education or from work history. It is also frequent for families to have not only assets, but numerous debts. Sometimes, one of the spouses has committed misconduct during the marriage and/or leading up to the divorce. In these and other scenarios, the property division becomes more complicated.