The lawyers at Skillern Firm have been asked this question many times in a consultation with a potential client. This post will work to explain what assets, property, and even money that parties to a divorce can expect to potentially be able to ask the Court to divide. Generally, the Court will make a just and right division of the marital assets and property and often, that division is based on an agreement between the parties.
Texas is a community property state, which essentially means that property (and money) acquired during the marriage belongs to both spouses, unless one can prove that it is separate property by a preponderance of the evidence (fancy legal speak for more likely than not). Separate property is basically anything owned prior to marriage, or anything acquired through inheritance, gift, or some portions of legal recovery (a personal injury recovery is separate property – except for the portion of the award intended to compensate for lost earnings during the marriage). However, in Texas, the presumption is that property is community property.
Under Texas law, what is considered “just and right” in terms of property division, is that the division of the property must be equitable given the circumstance. That is because in Texas, there are grounds that the Court can consider: 1) fault in the breakup of the marriage; the disparity of earning power between the spouses; 3) each spouse’s health; 4) which spouse has custody of the children; 5) each spouse’s education; and, 6) future employability of the spouses.
It’s all about the Benjamins
The assets of a marriage, obtained during the marriage – the financial accounts, investment accounts, brokerage accounts, funds on deposit in banks, savings bonds, and basically the financial assets, will be community property subject to a just and right division. Sometimes reimbursements are made because one spouse used community funds to enrich their separate property, or used their separate property to enhance the community. Financial assets will be divided in a just and right manner by the Court. This does not always mean a 50/50 equal split. Again, the Court will look to the factors above, including fault in the breakup.
What about pension and retirement benefits?
If a person contributes to, or accumulates interest in a pension, retirement, profit-sharing or other employee benefit plan during the marriage, then that would be community property and subject to a just and right division. Sometimes, the Court will award one party a percentage of the other party’s retirement or pension plans. Sometimes the Court will award each party their own – especially if both parties are similarly situated according to the just and right factors outlined above.
“It’s none of your business!”
It is important to have an experience Houston Family Law Attorney like Board Certified Family Lawyer Matthew A. Skillern on your side when there is a business or businesses involved in a divorce. Generally, there must be an evaluation done by professionals to determine the value of the business – especially the goodwill, which is intangible but is a value that most businesses have based on their name or reputation in the market and community. A good appraiser is key to ensuring the accurate value of the business that is subject to a just and right division. As we have seen often, sometimes spouses wish to protect their business and in exchange agree to divest more of the community property or other community assets in exchange for protecting the business. May partnership agreements contain divorce clauses that both spouses are required to sign for this reason – to protect the business.
Real Property
Real property such as land and houses (and since is Texas we will also include ranches and farms) may be community property and will be subject to division just as the other community property discussed above would be. Who gets the house is again subject to the factors listed above for a just and right division. But practically speaking, parties usually agree to properties and sometimes the agreement is to sell the property and allocate the gains from the sale. If a house, land, ranch, or farm is inherited, however, it would be separate property and not community. If community funds were expended to improve, maintain, or hold the property, the community estate would be entitled to be reimbursed for those funds prior to a division.
If you are facing a divorce, It is always a good idea to speak with an experienced Houston family lawyer. A divorce, and the division of property, is a serious and technical process and an experienced family lawyer like the lawyers at Skillern Firm should be used to assist you. If you would like to speak to someone about your particular situation, call our office at (713) 229-8855 and speak to one of our experienced family lawyers. We are here to help you as we have helped many others.
* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today. https://skillernfirm.com/