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What Happens to Land or Property in a Divorce?

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Texas is not always a community property state

Many people know that Texas is a 50/50 community property state. However, unlike the law in California and some other community property states, Chapter 3 of the Texas Family Code is only a presumption, in terms of classification and division. More on these things below. Granted, the classification and split presumptions are very strong. But they do not apply in all cases.

Since the law in this area is rather uncertain, many couples with substantial separate assets enter into premarital agreements. Texas lawmakers have adopted the Uniform Marital and Premarital Agreements Act. Therefore, the law in this area is fairly certain, even when it comes to property division and classification issues.

If you do not have a premarital agreement, that is okay. However, the lack of a prenup could make divorce property division much more complex. Only a Ft. Worth family law attorney can effectively defend your legal and financial rights, in court and during pretrial settlement negotiations.

Property Classification

The average marriage which ends in a divorce lasts almost eight years. That is plenty long enough for property to become commingled. For example, Husband might use money from his paycheck (marital asset) to make his student loan payments (separate debt).

Other commingling problems are even more complex. Assume Wife uses a financial wedding gift to fix up a piece of rental property Husband owned before the marriage. The rental property was clearly a separate property asset when the couple exchanged vows. Depending on the additional facts, if the couple divorces without a premarital agreement, the rental property could be Husband’s separate property, Wife’s separate property, or community property subject to division.

Division Factors

All states have at least an informal 50/50 division presumption. But the presumption is stronger in Texas, because of the community property law. Nevertheless, an unequal division is still possible, if a Ft. Worth family law attorney presents sufficient evidence on a point like:

  • Standard of Living During the Marriage: Another presumption in the Lone Star State is that a divorce cannot be an unfair financial burden for either party. This presumption might require an unequal asset or debt division in some cases.
  • Future Earning Capacity: This factor often goes hand-in-hand with the above factor. If a spouse’s future earning capacity is limited, perhaps due to age, health, or custody of a minor child, that spouse might be entitled to a disproportionately large property settlement.
  • Separate Property Award: A marital property award does not take place in a vacuum. Separate property is part of the overall property settlement. A community property adjustment might be in order, to keep things fair.
  • Non-economic Contributions to the Marriage: This factor is usually either huge or insignificant. If one spouse gave up a lucrative career to be a full-time caregiver, this factor is often huge. Under any other facts, it is normally insignificant.

Technically, the burden of proof on these points is only a preponderance of the evidence (more likely than not). However, since the community property presumption is so strong, the evidence in support of a disproportionate division must be even stronger.

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