How do Courts Really Divide Property in a Divorce?

by Ricardo A. Barrera

Under Texas Law, the Courts look to accomplish a “just and right division” of the community property. Community property is property that was acquired during the marriage, that was not inherited or gifted. However, any property acquired during the marriage is presumed to be community property by the Court unless the opposing party shows that it is not. Community property is not just your house, land, and cash, but it also includes debts that were acquired during the marriage, retirement benefits, and in some cases, other benefits depending on what they are.

Sometimes before the marriage began, one party may have invested money they earned before the marriage into property that was acquired during the marriage. If that is the case, a competent attorney will gather evidence of this transaction in a form that the Court will accept in order to make a claim for reimbursement out of the community funds.

The simplest way to explain how things go, in a divorce as to the division of community property, is that it hinges on whether a “no fault” or “fault” based divorce exists. If a claim is made with proper evidence to back it up that except for some act of adultery, cruelty, violence, fraud, etc. the marriage would have continued, then the court will look to giving more than just a split down the middle to one or either party. This is where you get the concept of “he or she got everything” in the clearest example of fault based divorce.

In the end, there are many factors taken into account in dividing marital property. Know your rights and know what questions your attorney should ask because you may not even know that you are entitled to more than you originally thought.

ABOUT THE AUTHOR

Ricardo. A. Barrera

Ricardo Alonzo Barrera is the Managing Attorney at Barrera Law Firm and has practiced law since 2010. His experience includes family law, probate, personal injury, healthcare, and complex civil litigation. He earned his law degree from Texas Tech University School of Law and has also served as a legal correspondent and educator within the legal community.

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