Property Division

In divorce proceedings, one of the primary issues that must often be addressed is that of property division between the two spouses. In the state of Texas, property is divided into two distinct categories: separate property and community property. When a property division issue is taken up in a divorce case, the first step is identifying what property falls into which category. Community property must be divided between the two spouses, but separate property does not, as it is owned solely by either one spouse or the other.

Community Property

In most situations, community property is split equally, but circumstances do not always allow for this to occur. In order for a property split to be as fair and equitable as possible for both parties involved, certain factors must be taken into account, such as the value of the property being divided, the amount owed on the property or perhaps whether one spouse is in need of the property more than the other. Typically, most property that is accumulated between a couple during their marriage is classified as community property and will be divided accordingly. Generally, this excludes only gifts and certain inheritances. Joint ownerships will become joint divisions in the event that a divorce, annulment or death takes place.

Separate Property

In the termination of a marriage you will need to establish how property will be divided. When it comes to separate property, the assets of said properties generally remain undivided, instead being distributed solely to the spouse that retains original ownership. In some cases this is subject for revision, however, and if you are looking to ensure that your personal and separate property remains just that, you'll need to ensure that the following conditions are not possible factors:

• The marriage's liabilities are in excess of the marriage's assets
• No marriage assets exist, but instead one spouse retains full ownership of a large, separate property while the other spouse retains nothing
• One spouse is unable to work for valid reasons, i.e. health, age, disability
• No marital assets exists, but one spouse has valuable assets while the other has none; this is valid when the non-asset spouse acted as a stay-at-home parent and earned no money, thereby making him / her unable to support themselves after the marriage is officially terminated

In certain circumstances, divorcing spouses can transmute separate property, calling for legal transfer that effectively rearranges the character of a property that a husband or wife already own. In some cases, this can include transferring one spouse's separate property into community property or into the separate property of the other spouse. This law will not be applicable to minimally valued assets, nor will it apply to comingled assets.

Legal Disputes Involved in Property Division Cases

If the property division is disputed, the court will consider numerous factors to determine if one spouse should receive a disproportionate share of the property. Some of these elements include the earning capacity of each spouse, the health of the spouses, the children to be taken care of, inheritances, business or business shareholdings, and gifts. The conduct of each spouse will have little effect on property division unless the conduct was intended to harm the other party. Examples of conduct that will be penalized may include adultery, psychological abuse of the spouse or other morally improper conduct.