Property division in divorce can be complicated. How the courts divide the estate depends on the type of the property involved and when or how it was acquired. Particular attention must be given to division of real estate and retirement plans. The court must also determine which property is marital property and which is separate property.
Marital Property Versus Separate Property
Separate property is property that was owned individually by one of the parties prior to the marriage, or acquired after the marriage by a gift, inheritance, or personal injury award. Separate property will be retained by the owner of the property.
Marital or community property is all property acquired by the couple during their marriage. This includes real estate, income, investments, retirement plans, etc. Community property will be divided between the couple.
Texas Law: Equitable Division of Property
Although a 50/50 division of the property seems ideal, according to Texas law, property will be divided equitably, or according to what the court deems is “just and right.” Each judge is different, and each case is different. The interpretation of what is just and right is up to the individual judge. The judge looks at the facts of the case and determines what is equitable in each individual situation.
Real Estate: The Family Home
How the equity in the home is divided depends on many things. Did the couple buy the house together, or was it the separate property of one of the spouses prior to the marriage? It may be awarded to one spouse, and the other spouse pays the equity share to the one who keeps the house. The spouses can remain co-owners of the home if there are minor children, so the parties would list the home for sale when the last minor child graduates from high school. The house will then be sold, and proceeds divided. The one living in the home is generally ordered to make the house payments during this time.
It is a common misperception that investment or retirement accounts belong to the person who earned the money and invested them into those accounts. Under Texas law, if the money was earned during the marriage, it is community. It doesn’t matter whose name is on the account – if the funds were earned during the marriage, then they are owned jointly by both parties. The issue is complicated if the account was owned prior to marriage and has increased in value or had earnings during the marriage, making it subject to the rules of tracing. Additionally, unlike most other property, a retirement account usually requires a separate court order, called a Domestic Relations Order, to be divided.
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