The laws governing property distribution after a divorce vary from state to state but in Texas, most property that is acquired by a couple during their marriage belongs to both of them after their divorce. This can be a particularly harrowing and frustrating time in any person’s life so at Lamaria Law Firm, P.C. we want all of our potential clients to understand laws governing property distribution so we can provide them with the best possible counseling.
Texas is a community property state and hence, the court may decide that the property acquired during the life of the marriage has to be divided equally between the two parties. However, any property owned separately by the two parties may remain that way even after the divorce.
The issue that most commonly arises in this scenario is differentiating between communal and separate properties at the time of divorce. At Lamaria Law, P.C., we strive to define the couple’s property very clearly. The law in Texas for example, defines community property as all property that any of the two spouses acquired during the life of the property, except for separate property. The latter, on the other hand, is property acquired before marriage, inherited exclusively by one spouse and any recoveries for injuries sustained by one spouse (except for that portion of the award meant to compensate for loss of earnings during the marriage). The challenge is that at the time of divorce, separate property needs to be proven using evidence, otherwise, the court will assume it to be communal property and to be divided as such.
Community property is then divided in a manner deemed to be ‘just and right’ by a Texan court. This means that the court can use its judgement to decide fair and equitable distribution including factors like disparity of earning between the two spouses, fault of the break-up of marriage, which spouse has custody of the child(ren), each spouse’s health as well as their future employability.
Pensions and employment benefits may also be considered community property if the spouse, during marriage, had accumulated any interest in pension, retirement, profit sharing or any other employee benefit program. In this situation, if the Texan court decides to split the retirement benefits between both spouses, the attorney will prepare a document called Qualified Domestic Relations Order (QDRO) that is sent to the employer who then distributes the benefits accordingly. However, these benefits don’t have to be divided equally – many factors are considered by the court in this decision as well. For example, if both spouses have a separate retirement or pension account associated with their job with similar amounts, then the court may not divide them at all.
Any business or practice formed and cultivated during the marriage will also be considered community property. Evaluating the ‘goodwill’ of the business or practice can be challenging. At our law firm, we hire certified public accountants and business appraisers to determine the value of the business or practice in order to reach the appropriate number and allow us to help our clients receive their fair share of the community property.