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How Will Our Marital Property Be Divided?

If you’re planning to get divorced, one of the most commonly asked questions is, “How will property be divided?” Courts divide property under one of two possible methods: “equitable division” or the “community property” method. Under equitable division, assets that were acquired during the marriage are divided equitably. Typically, two-thirds of the assets are awarded to the higher wage earner, and one-third to the remaining spouse. The vast majority of states follow the equitable division method.

Texas’ Community Property Rules

Texas (along nine other states) follows the “community property” method. This means that all marital property will be split equally (in a 50-50 fashion) among both spouses – unless otherwise agreed to by both parties. If both parties agree to split property in a different ratio, that’s perfectly fine. However, if you are unable to reach an agreement with your spouse, then all property will be divided equally by the District Court. Most spouses choose to divide property themselves, rather than letting the judge decide.

When it comes to property division, one of the biggest areas of disagreement is who gets to own the family house. If children are present, the primary care giver typically gets to keep the family home. If you don’t have any children and the house is the separate property of one spouse, then the spouse who owns the house can ask the other spouse to leave. If you don’t have any children and both spouses own the home, then neither spouse has the legal right to evict the other. Of course, you can ask your spouse to leave, but he doesn’t have to move. If the home is jointly owned, then the only way to evict your spouse (until the divorce is finalized) is if a judge grants a restraining order in response to domestic violence.

How Texas Divides Marital Debts

Another commonly asked question is, “How are debts divided?” Courts divide community debts on a “just and right” basis. Your divorce decree cannot re-structure your mortgage obligations or change loan agreements. However, the courts will attempt to equitably divide any outstanding debt obligations among both spouses. Each spouse will file a “Sworn Inventory and Appraisement” that lists all property and debts (both community property, and separate property). Typically, the two inventories do not agree, but they will be used by the judge to decide the property division. If your case goes to trial, evidence will be submitted about the items included in the Sworn Inventory & Appraisement document. If there are disputes over the value of community property, you can always hire an appraiser to determine value.

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