When you decide to divorce, you and your spouse must figure out how to split up your property. Asset and property division is one of the most contentious aspects of divorce, especially when couples have substantial assets on the line. You need an experienced high-asset divorce attorney to help you navigate the division process and protect your rights to your separate property and your fair share of the assets you and your spouse share.
Turn to Balekian Hayes, PLLC, for experienced legal representation. For over two decades, our attorneys have offered forward-thinking legal counsel and helpful support to clients going through divorce. We’ll work hard to help you get the best start for this new chapter in your life. Contact us today for an initial case evaluation to discuss your options with our legal team.
What Are Examples of Assets in a Divorce?
In divorce, spouses must divide all property and assets in the marital estate. Common examples of assets that get split up in a divorce include:
- Real estate
- Vehicles, including motor vehicles, boats, and aircraft
- Antiques and collectibles
- Checking and savings accounts
- Brokerage accounts
- Retirement accounts, including 401(k) accounts, IRAs, or pension accounts
- Business ownership interests
Is Texas a Community Property State?
Texas uses the community property model for asset and property division in divorce. Under the community property model, all assets acquired by either spouse during their marriage get treated as jointly owned, even if only one spouse holds title to the asset or spent funds to acquire it. Spouses must divide all jointly owned or “community” property when getting divorced. The community property system also treats all debts incurred during the marriage as community debt that spouses must divide in divorce.
Community Property vs. Separate Property
During a divorce, spouses must identify which assets qualify as community or separate property. Separate property includes any asset owned by a spouse before the marriage or any asset acquired by one spouse during the marriage through an inheritance, exclusive gift, or personal injury claim.
Spouses do not divide separate property in a divorce. Instead, each spouse retains sole ownership of their separate property. If one spouse claims that an asset qualifies as community property and the other spouse claims it as their separate property, the spouse claiming the asset as separate property must prove the asset’s separate nature by clear and convincing evidence.
However, separate property may become community property through commingling of property. Commingling occurs when separate assets get mixed with community property, so it becomes impractical to identify which assets or portions of assets qualify as separate property. Spouses may also agree to convert a separate asset into community property.
The court may also deem a portion of the value of a separate asset as community property. For example, if one spouse owned a home before getting married and the other spouse moved in following their marriage and contributed to mortgage payments, property taxes, and upkeep costs for the home, the other spouse may have a claim to the value of the property that accrued during the marriage. In this scenario, the owner spouse’s estate may reimburse the community or marital estate for community property contributed to the spouse’s separate property if the owner spouse intends to keep the home as separate property.
How Do Courts Divide Assets in Divorce?
In Texas, courts must divide the community estate in a manner deemed “just and right” by the court, which means dividing community property fairly and equitably. However, this does not necessarily mean dividing the community estate 50/50. While courts may start with a presumption in favor of dividing community property equally, they might deviate from a 50/50 split based on factors such as:
- The spouses’ ages and health conditions
- The age difference between the spouses
- The spouses’ respective incomes or earning capacities
- The size of each spouse’s separate estate
- Each spouse’s financial condition
- The nature of the asset
Courts may divide community assets by balancing the total value of community property each spouse keeps. Alternatively, the court may order a couple to sell a community asset and split the net proceeds according to the court’s decree.
A court may depart from the “just and right” standard in a fault-based divorce or if one spouse committed fraud upon the community. Grounds for a fault-based divorce include cruelty, adultery, abandonment, living apart for at least three years, confinement to a mental institution, or serving a felony sentence of at least one year. “Fraud upon the community” occurs when a spouse spends or transfers community property outside the marriage without the other spouse’s knowledge or approval to deprive the other spouse of using and enjoying the property.
At the end of a divorce case, the court will issue a final decree of divorce that lists the separate property of each spouse, the community property that each spouse will keep, the community property the spouses must sell, the community debts each spouse must pay, and declares whether the spouses may keep or must divide community property retirement benefits.
How Can an Asset & Property Division Attorney Help You?
In many cases, divorcing spouses will negotiate a settlement to divide their community property and debt. Whether you’ve chosen to negotiate a divorce settlement or want to have the court decide asset and property division, an asset and property division attorney from Balekian Hayes, PLLC, can help you protect your interests and future by:
- Assisting you with gathering your financial records, including income statements, bank/brokerage/pension account information, vehicle titles, and property deeds
- Evaluating your family’s assets to identify which assets qualify as community property
- Advocating for your interests if you pursue a settlement with your spouse
- Persuasively arguing on your behalf to prove the separate nature of your separate property
- Fighting for a just and right division of community property in court or advocating for a more equitable division if your spouse bears fault for the divorce or committed fraud upon the community
Contact Balekian Hayes, PLLC, to Discuss Your Legal Rights in Asset Division in Divorce
If you or your spouse have filed for divorce, get legal help to protect your rights and interests during asset and property division. Contact Balekian Hayes, PLLC, today for a confidential consultation to learn more about the asset and property division process in Texas from an experienced divorce attorney at our firm.