Divorce: Division of Property

Looking for free legal advice on an impending divorce? Everything you can expect to learn from a qualified

Houston divorce lawyer about division of property can be found right here.

 

State laws of property division

You’ll encounter a different set of rules for property division depending on the state you live in.

Texas is a community property state. Under this type of law, it is up to the judge to determine what is “just and right” in terms of distributing property. Factors that can cause the judge to grant you a larger percentage of property include:

 

1. Greater earning capacity in relation to your spouse

2. Primary custody of the children

3. Superior educational background in relation to your spouse

4. Age differences and health

5. Specific needs of your spouse and children

Separate property

Under special circumstances, some property may be determined as separate property. This means that the particular items in question are not considered eligible for division via community property laws. Such items include:

1. Items obtained prior to the marriage

2. Items acquired as a gift

3. Items acquired through an inheritance

It is the job of the divorcing parties to bring any such items to the attention of the judge. Otherwise, all items will be assumed as community property.

The marital home

The laws of community property do not affect the actual home the married couple lived in. Rather, this is determined by homestead laws. Typically, though, the judge will attempt to keep any children of the affected parties in the previous marital home. This means that the primary care giver will usually retain ownership of the house.

Retirement funds

Generally, the judge will divide retirement funds equally. This is done to avoid the penalties (early withdrawal, income tax, etc.) that can be incurred from messing with such funds. If desired or agreed upon by both parties, however, such funds can be distributed differently.

Effects of conduct

The conduct of the parties rarely plays a factor in division of property. A judge may choose to penalize a party for gross misconduct such as psychological abuse or adultery, but such instances are waning. More likely, such acts as frivolous spending and fraud will initiate a judge to sway his or her decision.

Effects of length of marriage

It’s not uncommon for a party to list “length of marriage” as a reason for lopsided division of property. This argument is more a secondary reason than primary. A more valid argument can be made via the effects of earning capacity and age/health as a result of the length of marriage.

For example, a middle-aged housewife would likely have a harder time finding gainful employment than a younger housewife because she has been out of the job market for a longer period of time. Similarly, health issues brought on by age or physical impairment will also require special consideration.

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