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Who Gets What In A Divorce in Texas?

Updated: Nov 22, 2022

Texas is a community property state. Anything earned or purchased during the marriage is equally owned by you and your spouse, so generally speaking, it should be divided equally in the event of a divorce. However, you and your spouse can choose to divide your property in any way that you both agree to as long as you reach a mutual agreement. Here are a few guidelines to help you figure out what you and your spouse could leave a divorce with.

Community Property includes but is not limited to all money or assets earned during the marriage, all investment and retirement account contributions and growth made during the marriage, and any homes, vehicles, or businesses acquired or invested in during the marriage. Art, jewelry, and any other belongings acquired during the marriage are also technically considered Community Property. Debts are also included in this equation. You and your spouse are equally liable for any debts taken out during the marriage.

Separate Property includes property that was acquired before marriage and any gifts, personal injury settlements, or inheritances received during the marriage. There are exceptions to these rules, such as if the personal injury settlements were meant to recover lost earning capacity that would have been earned during the marriage. Those earnings from the settlement could be considered Community Property in some cases.

Commingled Property is Separate Property that has been partially or fully converted into Community Property. For example, if one spouse owned a home prior to the marriage, that would normally be considered Separate Property. If the other spouse made regular payments specifically to help cover the mortgage or can clearly prove that they paid for specific improvements to the property, this could make some of the property commingled. Another example could be a bank account owned by one spouse prior to the marriage. If the account has contributions and or transactions related to both spouses during the marriage, the account could be considered commingled.

If both spouses cannot agree on how commingled an asset is, after going to court, a judge can determine this for you.

Generally an item has to be valuable for it to make sense to put up a legal fight, so it may be in your best interest to settle as much as possible without involving attorneys or going to court. If there is going to be a battle over assets, that normally translates into billable hours for both your attorneys. With billable rates ranging from $200 to $650+ per hour, the money you would pay to recover the assets may quickly outweigh the value of the assets. Unless you’re willing to spend more than the item is worth, or the asset is very valuable, or you have a written legal agreement saying specifically that an asset is commingled, it is likely going to be in your best interest to resolve the dispute without legal help or involving the courts.

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