Marital Property Explained: A Guide for Women Going Through Divorce
One of the most important aspects of any divorce settlement is deciding how marital property gets divided. If you’re in Texas, it’s important to know that the state’s laws on marital property are unique, as Texas is a community property state. This means that what you and your spouse own (and owe) will be divided in a very specific way.
This guide will help explain marital property, how it’s divided in a Texas divorce, and how the state’s laws impact assets.
What is Marital Property?
In simple terms, marital property includes assets and debts that were acquired during your marriage. It doesn’t matter whose name is on the title or who made the purchase—if it was acquired during the marriage, it’s likely considered marital property under Texas law.
Community Property vs. Separate Property
Texas law divides property into two categories: community property and separate property.
- Community Property refers to anything acquired during the marriage, from your home to your spouse’s paycheck, regardless of whose name is on the account. Under Texas law, both spouses are considered joint owners of community property (Texas Family Code §3.002).
- Separate Property includes assets you owned before getting married, inheritances, and certain gifts received by one spouse. Separate property remains yours, but be careful—if you mix separate property with marital assets, it could become community property (Texas Family Code §3.001).
How Texas Law Treats Marital Property
Texas is one of the few community property states, meaning the law assumes that both spouses jointly own most property acquired during the marriage. In a divorce, the judge will divide this property in a way that is “just and right” (Texas Family Code §7.001). But “just and right” doesn’t necessarily mean a 50/50 split—many factors are considered, such as:
- Each spouse’s income and earning capacity.
- How long have you been married?
- Any misconduct, such as infidelity or financial irresponsibility.
Even though Texas law assumes everything acquired during the marriage is shared, you can protect some assets as separate property by keeping clear records and avoiding commingling them with community assets.
Prenups and Postnups: How They Affect Property Division
If you and your spouse signed a prenuptial or postnuptial agreement, this document will guide how your property is divided during the divorce. These agreements can specify how both community and separate property will be treated, which may override Texas’s default rules (Texas Family Code §4.001 – §4.010).
For example, if you owned a business before marriage and wanted to ensure it stayed separate, a prenuptial agreement could protect it from being divided as community property.
Dividing Marital Property in a Texas Divorce
When it comes time to divide your marital property in a Texas divorce, there are a few key steps:
- Identifying All Assets: Both you and your spouse must disclose all assets and debts. This includes everything from bank accounts to retirement funds, real estate, and debts like credit card balances.
- Distinguishing Community vs. Separate Property: The next step is determining what community property and separate property. This isn’t always easy—sometimes separate property can get “commingled” with marital property. For example, if you had a personal savings account before marriage but kept adding to it with your spouse’s earnings, it might now be considered community property.
- Property Valuation: The court will need to assess the value of all assets to ensure they can be fairly divided. This can be handled privately if you and your spouse can agree on the value. Otherwise, the court might require professional appraisals.
- Dividing the Property: Finally, the court will decide how to divide the community property based on what’s “just and right.” Factors like your financial contributions, the needs of your children, or any misconduct during the marriage (such as wasting money) can impact the final division.
Special Cases: Retirement Accounts, Inheritance, and Debts
Certain assets can complicate the process, so it’s important to know how Texas treats them:
- Retirement Accounts: Any portion of retirement accounts earned during the marriage is generally considered community property. This means retirement plans, pensions, or 401(k)s could be subject to division (Texas Family Code §7.003).
- Inheritance: Inherited property is usually considered separate property, even if it was received during the marriage (Texas Family Code §3.001). However, if you deposited inheritance money into a joint account or used it for a shared expense, it could become community property.
- Debts: Marital debts are also divided as part of the divorce settlement. This includes credit card debt, mortgages, and car loans. Just like assets, debts are assumed to be shared if they were accumulated during the marriage.
FAQs About Marital Property in Texas
Can I Protect My Separate Property During Divorce?
Yes, you can protect your separate property, but it requires careful documentation. For example, if you inherited money and kept it in a separate account with no marital funds mixed in, it should remain yours. Keep clear records to prove its separate nature.
What Happens if My Spouse Has a Lot of Debt?
If the debt was incurred during the marriage, it’s likely considered community debt. This means you may be responsible for part of it, even if it’s in your spouse’s name. However, if the debt is tied to one spouse’s reckless spending, the court may assign a larger portion to that spouse.
How Do Courts Divide Complex Assets Like Businesses or Real Estate?
The court will often bring in experts to value businesses, real estate, or other complex assets. If you owned a business before marriage, it may be considered separate property, but any growth in its value during the marriage could be seen as community property.
Final Thoughts
Going through a divorce is never easy, and the division of marital property can be one of the most challenging parts of the process. Understanding how Texas law treats community and separate property can give you some clarity as you move forward. Remember, the way property is divided in a Texas divorce isn’t necessarily about an equal split—it’s about what’s fair for both parties.
To protect your interests, it’s always a good idea to work with a lawyer who can guide you through the process, especially when it comes to complex assets or high-value property.
Understanding Texas’s unique community property laws and how they impact your divorce, you can navigate this process more confidently and clearly.
