Property Division

Division of Property

As part of the divorce lawsuit, the property which the parties have accumulated during their marriage must be divided and allocated between them. Texas is a community property state. As such, our laws provide that we classify, or characterize, property into two categories: community property and separate property. There is a legal presumption that all property and liabilities accumulated during the course of the marriage is community property, subject to division upon divorce. Separate property is property or liabilities accumulated prior to the marriage, and property received by either gift or inheritance either before or during the marriage. While very rare, the recovery for personal injuries sustained by a spouse during the marriage would also be the separate property of that spouse. The first step in dividing the property in a divorce is to characterize each asset or liability as belonging to either the community or separate estate of the parties. This initial step is vitally important because the Court can only divide the parties’ community estate. The separate property belonging to either party, notwithstanding how much or how little, cannot be divested or taken away from that party during a divorce. Therefore it is important to properly characterize property as either separate or community, and the actual date of acquisition, except for gifts or inheritance, is the key component for making that proper characterization. Once assets and liabilities have been properly characterized, the next step in property division is to determine the value of the individual assets and liabilities. Certain assets, and almost all liabilities, have an easily ascertained value. The debt owed to a particular creditor, or how many funds are in certain financial accounts on a given day should be easy to determine, and that value can be assigned to the particular asset or liability. Other assets, such as real property or vehicles, have an inherent subjective element to determining their value, although there are routine methods for determining such. The fair market value is always considered by a home seller when they decide at what price to list the home for sale. Additionally, furniture and household effects are valued according to their present fair market value, rather than the actual cost or replacement cost for the item. Once you have a value assigned for all of the significant assets and liabilities, you are able to add together and calculate the net total value of the community estate of the parties. The third, and final, step to the division of property involves determining the percentage of the net total community estate each party is to receive. Some estates are divided equally, while in other cases, a disproportionate division of the property may be awarded to one party based upon certain factors which the Court is empowered to consider in dividing the community estate. If the percentages can be agreed to, then the property is allocated between the parties, based on the assigned values of the assets and liabilities, in a manner designed to achieve the desired percentage split. In this instance, each party can have input into which items should be awarded to whom. I have attempted to provide a simple explanation of how property is divided generally, and the applicable law thereto. There are obviously certain complicated assets where it is generally difficult to easily determine the value of the property interest, and those must be considered on a case by case basis.