Top Ten Property Division Factors in a Texas Divorce
The Lone Star State is one of the few community property jurisdictions in the United States. In some places, like California, the community property rule is almost absolute. In almost all cases, the court orders a 50-50 property division, regardless of the facts. But in Texas, the community property rule is more like a presumption. Judges can order an unequal division of property in some cases. The most common factors are discussed below.
So, in a marriage dissolution matter, property division issues are not set in stone. Both husbands and wives have legal and financial rights. Therefore, an experienced Houston family law attorney is essential. Otherwise, there may be no one to stand up for these rights.
Relative Age, Health, and Education of Each Spouse
A significant disparity in any of these areas could justify a disproportionate property division. Generally, young, healthy, and well-educated people have a rather high future earning potential, and older, sickly, and/or less-educated people have a much more limited potential.
Custody of Minor Children
This factor often affects the house. It’s usually in the best interests of the children for them to remain in the family home. Therefore, the residential parent usually obtains title to the house. An offset might be available, such as a lower share of a retirement account.
Fault in the Breakup of the Marriage
Texas is one of the only states where adultery or other fault in the breakup of the marriage is relevant in the property division portion of a divorce. This factor often looms large if the parties obtained an evidence-based divorce, but it is usually not too significant in no-fault divorces.
Dissipation (Waste) of Assets
Typically, dissipation is unintentional, or at least not malicious. For example, Husband might use money from his paycheck (community asset) to pay his student loans (separate debt). Dissipation could also be intentional, such as buying gifts for a girlfriend. Intentional dissipation often involves fraud, as discussed below.
Length of the Marriage
The more time a spouse has invested into the marriage, the more return this spouse is entitled to. This factor is especially significant if one spouse gave up career advancement opportunities to be a homemaker.
Spousal support, much more than property division, directly affects the amount of cash the spouse has. So, it’s impossible to separate the property division from the alimony award.
Separate Property Award
These same principles apply to separate property awards, especially if the spouses had been married before. Separate property awards often include retirement accounts that are not entirely community property.
Speaking of retirement accounts, tax considerations often play a role in these divisions. 401(k) divisions are usually, but not always, tax-free. The outcome depends on the plan’s division rules, which vary greatly.
Community Property Fraud
Many spouses try to conceal assets. Common schemes include intentionally over-withholding income and funnelling assets to phantom LLCs. This factor essentially punishes these spouses for trying these things. Attorneys usually uncover these schemes during divorce discovery.
Most of the aforementioned factors focus on assets. But that’s only half the balance sheet, in many cases. If a spouse has substantial debts, including separate debts, the spouse must have the means to pay them.
Reach Out to a Dedicated Lawyer
Divorce property divisions in Texas are not always 50-50. For a confidential consultation with an experienced Houston divorce attorney, contact Lindamood & Robinson, P.C., Attorneys at Law. After-hours visits are available.