Why Divorces Do Not Always Divide Things 50/50

If you are planning to end your marriage, you may have a bit of anxiety. After all, you must face the prospect of starting a new chapter in your life. That said, you should not have to worry about losing your personal property or not receiving a fair share of marital wealth. 

For divorce purposes, Texas is a community property state. This means that with few exceptions, property and debts that you and your spouse acquired during your marriage belong to both of you. Upon divorce, you must divide marital assets and debt according to what is just and right. This does not necessarily mean a 50/50 split, however. 

Community property vs. separate property 

By definition, community property is any property that you and your spouse have at the time of your divorce that is not separate property. This may include your home, cars, pets, investment accounts, furnishings or virtually anything else. Separate property, by contrast, includes assets that you owned before you married your spouse. Items gifted exclusively to you or a specific inheritance may also be separate property. The same is true for interest earned on these assets. 

Settlement vs. judicial intervention 

If you and your spouse can reach an agreement about dividing marital property and debts, a judge is likely to honor it. Still, because divorces can be both acrimonious and contentious, you may not see eye-to-eye with your soon-to-be ex-spouse. If a judge intervenes, he or she must divide property pursuant to what is just and right. When doing so, a judge may consider the following factors, among others: 

  • Fault 
  • Marriage duration 
  • Each spouse’s health 
  • Estate size 
  • Earnings capacity 
  • Tax implications 

If you are going through a divorce, you should receive an equitable share of marital property. You must realize, though, that what is fair and just may not equal 50%. By understanding how Texas law addresses the division of community and separate property, you can better advocate for a fair share of your marital wealth. 

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