Texas State, Community Property and Separate Property Issues
Posted on | March 17, 2011 | No Comments
For the purposes of divorce, in the state of Texas, property is either “community” or “separate.” Community property refers to physical property and assets that were acquired over the course of a marriage. Community property can include furniture, cars, a home, investments, and other kinds of things that were acquired during a marriage. Additionally, a closely held business may be considered community property if it was started after a marriage or used commingled assets to increase its value or support operational costs.
Separate property, in general, refers to property that was brought into a marriage, received as a gift or inherited by only one spouse, or money paid as part of a personal injury settlement or award. In some cases, however, what may have been separate property may become part of community property once it is commingled with marital property. For example, if your spouse received $50,000 in inheritance from a great aunt and used the money to re-model the living room, the money has now been used to increase the value of your home. As a result, in this case, the inheritance in question would be considered part of community property.
Dividing Community Property in Divorce
So, how is community property divided in divorce in Texas? The court will review the financial and living situation of you and your spouse to determine an “equitable” division of your marital property. An equitable division does NOT mean that property will be divided 50-50 – straight down the middle in equal halves; rather, “equitable division” means dividing property in a way that is fair and just once specific facts are taken into consideration concerning each spouse. In this regard, the court will consider the following:
- The work history of each spouse
- The employability of each spouse
- The ability of each spouse to support him or herself
- Who was at fault in the divorce
- The education level of each spouse
- The health of each spouse
- The lifestyle each spouse is accustomed to
- The needs of any children from the marriage
Qualified Domestic Relations Orders: Division of Pension Funds
If a spouse has invested in a 401(k), retirement plan, or profiting sharing plan at anytime during a marriage, the assets accumulated are subject to division upon divorce. After the court awards a portion of an ERISA compliant retirement plan or pension, a Qualified Domestic Relations Order (QDRO) must be filed with the plan’s administrator in order to receive the portion the other spouse is eligible to receive. If a 401(k) must be divided, the funds are typically disbursed within 30 to 90 days after the QDRO is finalized. If a pension plan must be divided, a calculation of the how much the other spouse should receive must be sent to the employer or plan administrator.
Contact Dallas, Texas Divorce Attorney Marilynn W. Landon.
There are a number of issues to consider if you’re considering divorce or have received divorce papers from your spouse. In the division of community property, you may be able to enter into mediation or the collaborative law process to negotiate with your spouse over who gets what and how much. This puts you in charge and avoids having the court impose terms that may not be ideal for either your or your soon-to-be ex-spouse.
Contact an Experienced Texas Property Division Lawyer
For additional information about property division in Texas, or to schedule a free initial consultation with a lawyer who will guide you through the legal process and provide you with the advice and information you need, call Dallas attorney Marilynn Landon at (214) 522-4226. If you prefer, you may fill out our intake form, and someone from our office will contact you to schedule an appointment.
Located in Dallas, Texas, the Law Office of Marilynn W. Landon handles divorce and other family law matters for clients throughout the communities in and around the metroplex – Dallas County, Collin County, Denton County, Tarrant County, Rockwall County & Kaufman County.
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