Property Division During Divorce

Common property issues include characterization of property, spousal maintenance (alimony), temporary spousal support, distribution of retirement and tracing.

Characterization – Property division tab

Characterization of property is the concept use to determine whether property is community or separate property.  The trial court is not able to divide up separate property; separate property is not part of the community estate or the marital assets. Separate property is primarily composed of property owned solely by one party before the marriage, gifts, and inheritance.

It is a common misconception that in Texas divides community property 50/50. Instead, the Texas Family Code states that the court shall order a division of the estate in a manner that the court deems just and right.  Tex.Fam.Code § 7.001 (Vernon 2011).  However, often the issue of characterization of property is not black and white.

Retirement– Property division tab

Texas law provides for the distribution of retirement according to the same rules as other property unless a specific statutory exception applies.  However Federal Law controls distribution of retirement.  Having an attorney that understands the interaction between Federal and State law controlling distribution of retirement is essential for anyone who is getting a divorce.  

Tracing– Property division tab

Tracing is the process of determining whether property is community or separate.  Tracing examines how the parties to a divorce acquired property and how it changed during the marriage.  Attorneys must not only understand tracing, but take the time to go through documents, often hundreds of pages, in order to determine the nature of each asset.  

It is important to hire an attorney that understands financials, bank statements, etc and will protect your separate property and your interest in the community estate.