The divorce laws in Texas are unique. Texas is one of a handful of states with a community property law. As it pertains to divorce, this means that all property acquired by either spouse during the marriage is “community property,” also known as marital property. However, unlike California and other community property states, Texas divorce law does not mandate that all marital property be split equally between spouses. In this way, Texas law more closely resembles the other 42 states, known as “equitable division” states. The Texas Family Code requires the courts to distribute property in a manner that is “just and right,” rather than a 50-50 split.
Community or Separate Property
Community property, also known as marital property, is anything acquired by either spouse throughout the duration of the marriage, with some exceptions. This includes personal retirement and pension plans, as well as any debt taken on by either spouse during the marriage. It also includes interest and dividends earned on separately owned real estate.
Separate property includes all assets and debts acquired before the marriage or after the separation, with some exceptions. It also includes inheritance and gifts given in only one spouse’s name, as well as personal injury settlements or awards (except for compensation given for lost wages during the marriage).
However, separate property can sometimes be transmuted into community property through a process called commingling. When separate property becomes commingled with community property, it can be difficult to tell them apart. Consider the following example:
A spouse receives a $20,000 inheritance and places it in the couple’s primary joint checking account. The couple uses money from this account to remodel their marital home, among other purchases. When the couple divorces, the spouse will no longer be able to claim his inheritance as separate property because the money was commingled with community property.
Divorce Settlements and Prenuptial Agreements
One way to prevent any perceived inequity associated with Texas’s community property law is for the spouses to reach an agreement among themselves. This can be achieved at the outset of the marriage with a prenuptial agreement, or as a settlement agreement reached during the divorce process.
In a divorce settlement or premarital agreement, a couple can decide on their own what division of assets works best in their individual situation, rather than have the court decide for them. The courts often encourage this by ordering couples to attend mediation before they will grant a hearing on the matter.
There are only a couple restrictions to what can be agreed on in a divorce settlement. First, if an agreement for child support is reached, it cannot be lower than the obligation set by the state, unless the judge agrees it is in the best interest of the child. Additionally, a judge may not allow any provisions which are “unconscionable,” meaning unreasonably unfair to one spouse.
For Legal Help, Contact a Dallas TX Divorce Attorney.
If you are considering a divorce, it is important to reach out to an experienced Texas divorce attorney as soon as possible. The Law Office of Sharita Blacknall in Dallas, TX is ready to assist you with your divorce, child custody, domestic support order, or other family-based legal matters. Contact us today to schedule an appointment.
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