How do we split our property in a divorce?

Getting a divorce can be a complicated and emotional process. It is never easy and often isn’t always amicable. So, what happens when you can’t agree on who gets what? One of the most complex parts of a divorce can be dividing up assets; this is particularly true with the division of property. But, in addition to assets, a married couple may also share their debt. So how is the property and the debt divided in a divorce?

The simplest solution is for the couple to decide amongst themselves and work out an agreement that both parties are happy with. However, this is often easier said than done, and most couples have difficulty reaching such a resolution. As a result, the matter often ends in court. Divorce and property division laws vary state to state, but there are two general types of property division: community property and equitable distribution. Texas is among the handful of states that follow community property division. This means that all property is divided into two categories, marital property and separate property, all marital property gets divided equally, while each individual gets to maintain their separate property. In the majority of states following the equitable distribution rule the judge will determine what is a fair distribution of the property rather than simply dividing everything equally.

In states like Texas that subscribe to community property distribution, the question then becomes how to determine what is community property and what is separate property. Generally speaking, community property includes all property and debts that are accumulated during the marriage, unless otherwise specified. Separate property is property that was acquired by either party before the marriage, or property acquired separately such as a gift, inheritance or pension. These acquisitions do not always fit clearly into one category or another and often can end up as commingled property; commingled property then gets treated as community property for distribution purposes.

This is clearly a complex process full of legal nuances and requires significant attention to detail. An experienced family law attorney can help you navigate this difficult process of property division during your divorce.

Source: Findlaw.com, Divorce Property Division FAQ, accessed Jan 16, 2018

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