When couples decide to get a divorce, most will face a long road as they decide how to split their property and assets. The state in which they live can also dictate some of the terms of property division.

Texas law governs the division of marital property upon divorce and in general, even though Texas is a community property state, the law does not require a 50-50 division of the property. The court will divide the property in a “just and right” manner which gives the judges a lot of flexibility.

Many factors are in play

One thing that the court looks at when determining property division is whether the property was separate property or community property. All property acquired during the marriage will usually be the property of both spouses, and considered community property. The court presumes that all property owned by the spouses at the time of the divorce petition is community property, unless claims are filed to designate specific items as separate property. For example, if during the marriage, property was given to only one spouse as a gift or an inheritance, that can be considered separate property. However, if one spouse is claiming property as separate that fact must be proved in court.

The length of the marriage, while not the only factor under consideration, also plays a role in the division of marital property. The court looks at each individual’s situation. For example, if a couple was married for two years, one gave up working outside the home for the second year of marriage after their child was born, and both are 30 years old, the court assumes that the spouse who stayed at home will be able to reenter the workforce more easily than a 60-year-old spouse who hasn’t worked outside the home in 40 years.

The importance of the “marital home”

Although there are no special rules in Texas for deciding who gets to keep the marital home, in general, judges want to try to make sure that the children get to stay in their home. The court tends to give the marital home to the spouse who has primary custody of the children, as long as the division of property will still be fair and just.

Retirement planning and legal advocacy for property divisi on

The court usually tries to divide retirement plans equally between the spouses. When there is a question about how a retirement plan is valued, this property division can get tricky. Factors that figure into the valuation include whether there are penalties for withdrawal and how income taxes are affected. If the parties can come to their own agreement regarding retirement plans, the court will usually honor that.

Even in a communal property state like Texas, property division during a divorce can get complicated. If you are considering divorce, contact a family law attorney to help you through this process and protect your rights. An experienced attorney will be able to advise you on all aspects of divorce, from property division and child custody to spousal and child support, mediation options and other legal issues.