Whenever two people divorce, nearly everything they own—from their family home to their shared vehicles to their person possessions—must be divided. All states have rules that govern the division of property, ostensibly with the goal of distributing assets and debts “fairly” among the two spouses.
There are two methods of dividing property in a divorce: equitable division and community property division. While equitable division focuses on distributing marital property “equally” (not necessarily 50/50), community property division takes a more holistic approach. Commonly referred to as the “50/50 rule,” community property division assumes that nearly all property acquired during a marriage is the joint property of both spouses. As a result, all marital assets are essentially “up for grabs” during a divorce.
Texas is a community property, or 50/50, state. This means that almost all property, assets, and/or debts acquired during your marriage are subject to division in your divorce—regardless of who acquired them. However, it does not mean that all your property will be divided exactly 50/50 between you and your soon-to-be ex-spouse.
Continue reading to learn more about community property division and what it may mean for your Texas divorce, or contact our Houston divorce lawyer at Kay Polk, Attorney at Law today to discuss your case with an experienced legal team.
What Is Community Property?
The phrase “community property” is used to refer to all property and assets acquired during a marriage by either spouse. Community property is different from separate property, which is any property or asset an individual owned before the marriage. Separate property might also include a gift given only to one spouse or one spouse’s inheritance.
Common examples of community property include:
- The family home
- Other real estate purchased during the marriage, such as a vacation home
- Any vehicles purchased during the marriage
- Wages/income earned through employment during the marriage
- Pensions, 401k contributions, and other retirement accounts
- Checking and savings accounts
- Compensation for unemployment and/or lost wages
- Debts incurred during the marriage (mortgages, student loans, personal loans, medical debt, etc.)
In contrast to separate property, which is not subject to division during your divorce, all of these and other community properties will be divided between you and your spouse. This is true regardless of who’s name is on the deed or title, who made individual contributions to the account, or who took out (or has been paying for) the loan.
What Factors Does the Court Consider When Dividing Property in a 50/50 State?
One of the biggest misconceptions about 50/50 states is that the court will divide every last bit of community property evenly between the two spouses. In reality, judges do their best to distribute community property in a way that is “just and right.” This simply means that the division of property must be equitable—not necessarily even.
Courts take several factors into account when determining how community property will be divided. These may include:
- Fault: Although Texas allows divorce on the basis of no fault, the court may weigh fault when determining how to divide property when fault is a relevant factor in the divorce.
- Earning Ability: The court may also weigh each spouse’s earning ability (and how they compare), as well as their future employability when determining how to divide property.
- Child Custody: If there are children, the court may look at who has primary (or sole) custody when ruling on the distribution of community property.
- Health and Education: Often, the court will look at the health and education of each spouse, as this can indicate each of their overall earning capacity.
While nearly all property accumulated during the marriage is subject to division, the court will weigh these and other relevant factors when determining how to divide that property. It’s important that you work with a skilled divorce attorney who can advocate for you and protect your best interests.
Are Family Businesses Considered Community Property?
When it comes to divorce, family businesses (and other professional practices) are like any other asset. The court will weigh whether the business constitutes community property based on a variety of factors, including when it was founded or acquired, what contributions were made (if any) by either/both spouses during the marriage, and the intangible value (“goodwill”) the business or professional practice has, among others.
When one or both spouses in a divorce has developed a professional practice or has a private business, it is a good idea to work with professional appraisers and/or certified public accountants to properly assess its value. An experienced attorney can help you avoid costly mistakes that may ultimately jeopardize your business, your livelihood, and your very future.
How Our Firm Can Help
Regardless of the size of your estate or the value of your assets, it’s important to have professional legal counsel guiding you through the divorce process. After all, nearly everything you own could be subject to division in your divorce.
As an experienced Houston divorce attorney with over two decades in practice, Kay Polk understands the stress you are under and the challenges you face. Our entire firm is here to guide you through the process of filing for divorce and working to ensure a truly fair distribution of community property. We always fight for our clients’ best interests and will do everything we can to protect your rights. We are here to answer your questions and provide the personalized, attentive support you need.