In an ideal world, you and your spouse would be able to come to an agreement about how you want to divide your property in a divorce. Unfortunately, the ideal is often just that, and a divorce lawyer in Houston, TX can help you understand more about how your property is likely to be divided if you and your spouse can’t come to an agreement. A lawyer can also help you protect your rights and ensure that you come away with an equitable division of the property after your divorce.
How Is Property Divided in a Houston, TX Contested Divorce?
Texas divides property on the basis of “equity.” This contrasts with some states, where property is typically divided 50-50. In those states, the courts go into the situation assuming that the property should be divided equally, but in Texas, that assumption does not apply. Additionally, couples should not expect that each person will get a fair portion of each asset. The court does not go through each asset separately and try to divide it equitably between the two. Instead, it considers what is “just and right” in order to make a split of all the assets and debts considered together.
Factors That Influence Division of Property
Spouses’ Marital Contributions
One thing the court will consider is what each spouse has contributed to the marriage. A contribution can be much more than money. For example, one spouse may technically be the sole owner of a business, but if the other spouse spent substantial time doing unpaid work to get that business off the ground, the court will consider this a contribution to the marriage and to the business.
Conversely, the other spouse may have had nothing to do with the business, but if they stayed at home and cared for the children and the home so that the other spouse could spend long hours devoted to building the business, this would also be considered a contribution to the marriage and to the business itself, which it would then be marital property.
Separate Property
The court will consider what separate property each spouse owns in making a division of the marital property. If one spouse, for example, has a substantial inheritance from a relative that was bequeathed to them alone, the court may take this into consideration and award the other spouse a greater proportion of the assets.
Health and Other Needs
If one of the spouses suffers from serious health concerns that are expensive to treat or which restrict their ability to work, the court may take this into consideration and award them a greater amount of the marital assets.
Earning Potential and Abilities
In some marriages, both parties have similar earning capacity because they have worked jobs, gotten similar education, and are about the same age. In other marriages, one spouse may have focused on career while the other spouse focused on the family. The spouse who did not focus on career may only be qualified for minimum wage jobs until they get more training, and thus will suffer more after the divorce than the other spouse who has more employment options.
Misuse of Marital Property
If one of the spouses was found to be squandering marital property, the court will take this into account, and especially if the other spouse was unaware of the misuse or was aware and tried to stop it but could not. This may particularly be a factor if one spouse committed adultery and use marital property to give gifts to their new partner while still married.
Fault in Causing the Marriage to Break Up
If the marriage is breaking up primarily because of the behavior of one spouse, whether that is adultery, abuse, or criminal activity, the court may award the other spouse more assets in response. This is not necessarily a given, and it will have to be proven that the fault was actually the reason for the divorce.
For example, if the couple had been living apart for months or both knew they wanted a divorce and there was no interest in making the marriage work, one partner’s adultery in that situation may really have nothing to do with the divorce, which was coming anyway. In that case, the court may not take it under consideration for asset division.
The Precise Nature of the Marital Property and Tax Concerns
The court will also consider exactly what property and assets are to be divided and whether there may be tax consequences if property is divided and who will bear the bulk of that debt. For example, a retirement account could be sold and divided, but it would then garner large tax penalties. The court may instead assign it to one party without requiring it to be divided and give the other partner some other asset in order to avoid either spouse being hit with a huge tax bill.
Who Will Be Possessory Conservator
If only one of the parents will be the possessory conservator of the child or children of the marriage, this may influence the court’s decision on property division, and particularly if there is a marital home. In many cases, it is in the best interests of the children to remain in their home with one of their parents rather than to sell the home and bounce back and forth between locations.
What Counts As Marital Property?
In Texas, marital property is everything that either party acquired during the course of the marriage, unless it was specifically a gift given to them alone or an inheritance. Property that was owned by one of the partners outright before the marriage continues to belong to that partner alone, provided it has not been mingled with the marital property and the other partner has not made a contribution to preserving or growing that asset.
Separate property could become marital property, for example, if one partner deposits their inheritance in a shared bank account. Or, if one partner owns a business, but the other partner has made substantial contributions to it, even if that first partner owned the business prior to getting married, the court may very well consider the business a marital asset.
What’s the Process Like?
The process of division starts by both parties fully revealing all assets and debts first to their lawyers and then to the court. Your lawyer can help you make sure nothing is missed here and also assist you in conducting an investigation if you believe that your spouse may be trying to hide assets.
The courts always encourage a couple to come to an agreement on their own whenever possible, so if you and your spouse are able to sit down with your lawyers and hash out a division of the property you can both agree on, you can retain control over your assets. The court will sign off on these agreements in most cases unless there is something egregiously unfair about it or something about the asset division would not be in the best interests of any children you may have.
Talk to a Divorce Lawyer for More
The best way to find out what will happen in your situation and what to expect for property division is to talk with a qualified divorce lawyer. Contact us at KGK Family Law for help in Houston.
