For those seeking a divorce in Texas, simply reaching the decision to separate can be difficult, much less choosing how to divide your property. While some divorces might result in a fifty-fifty split, there are many factors that could shift the balance.
If you’re considering a divorce, there are many options available to you, from mediation to collaborative divorces or even a court trial. Whether your divorce is likely to be amicable or contentious, the Brownsville family law attorneys of the Law Offices of Phillippe and Associates can help you find your path forward.
What Is Community Property?
Texas is known as a “community property” state, which means that courts in the state assume that any property acquired during the marriage is owned equally by both spouses. Thus, community property is any property acquired by either spouse throughout the marriage, with a few exceptions.
These exceptions are known as separate property.
Separate property includes anything that the spouse owned prior to the marriage. This may include inheritances awarded during marriage, as well as gifts given to only one spouse. Separate property can also include personal injury compensation awarded to one spouse, excluding compensation for lost income during the marriage.
It is worth noting that the court assumes that all property is community property until a spouse can sufficiently prove that it is not. If you have property that you feel should be separate, but which you suspect your spouse may try to claim, you will need a preponderance of evidence on your side to make the argument.
What Factors Could Affect Equal Distribution?
While there are options for spouses who wish to negotiate property division between themselves and a mediator, in other cases, a judge will determine a division of property that is “just and right.” While this might mean splitting any property fifty-fifty, many divorces will lead to divisions that aren’t equal.
There are several factors that come into play when it comes to making this division. These factors include but are not limited to:
- If a spouse was “at-fault” for the divorce
- Any disparity in the earning power of the spouses
- The health of each spouse
- The employment prospects for both spouses
- The education level of each spouse
- The amount of separate property each spouse owns
- If one spouse functions as the primary caregiver for the children
- If one spouse has custody of the children
It is possible for spouses to negotiate this division of property between themselves before submitting a settlement agreement for approval from the court. However, if the spouses can’t work together or come to an agreement, a court will decide for them.
How Are Retirement Accounts Divided?
Retirement accounts, employee benefit plans, and pensions earned during a marriage are considered community property. If both spouses have a retirement account, the court may simply decide to award both spouses their own account. Nevertheless, like all community property, the court may decide that one spouse deserves or is owed more of these funds.
If you are awarded part of your spouse’s retirement benefits, the court will order your spouse’s employer to distribute those benefits as the court sees fit. If you are awarded part of a 401(k) or another cash account, those funds should be dispersed to you within 90 days. If you are awarded a portion of funds meant to be paid upon your spouse’s retirement, you will receive your portion once that payment begins.
Protecting Your Rights with a Dedicated Brownsville Family Law Attorney
Even in the most peaceful divorces, it can be tough to determine a separation of property that is fair and acceptable to both parties. If you’re considering filing for divorce in Texas, you need a divorce attorney who can represent and fight for your interests. Family law attorney Christopher Phillippe will work tirelessly with tact and compassion to negotiate the settlement you deserve.