Diane St. Yves - Board Certified - Family Law
Texas Board of Legal Specialization
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Division of Property & Debt

Division of Property & Debt

In a divorce, you are dividing one household into two separate households. This is not an easy nor fair process and often causes people to worry about what possessions or assets they will have to start over. Unfortunately, there are no “winners” in divorce, however we understand that to restart after divorce depends on you getting your fair share of the community property.

In a divorce decree, the property and debt have to be addressed and it is typically categorized as either “community property” or “separate property” or “mixed character property”.

Separate Property:

Separate property is defined below. It is owned separately by each individual spouse. The Court cannot divest an individual of their separate property; however, it is the burden of the party asserting that their property is separate to prove, by clear and convincing evidence, that the property is separate.

Separate property includes:

  • Property acquired before marriage
  • Property acquired by will or intestate succession
  • Property acquired by third-party gift
  • Property or income arising from inter-spousal gift
  • Property recovered for personal injury that does not include lost wages

Community Property:

Community property is property acquired or created during the marriage, by either spouse. There is a presumption that all property that exists at the end of the marriage is community property and any claim of separate property must be proven by the spouse making that claim.

Sometimes it is not clear which is which because of the way the parties treated the property when acquired. Sometimes, even if it is separate property there may be a reimbursement claim for marital money that was spent on the separate property or debt of one of the spouses.

Once it is determined how each piece of property is characterized, the Texas Family Code requires that all assets that are community property be divided in a “just and right” manner. It does not say “equally” or “fair.”  The Court cannot divest an individual of proven separate property.

There are many factors that a court uses to divide community property and debt such as:
  • Spouses’ abilities to support themselves such as:
    • – Which spouse has custody of the children
    • – Education and employability
    • – Size of separate estates
    • – Health
    • – Age
    • – Liquidity and income production
  • Spouse’s wrongdoing such as:
    • – fault including adultery or cruel treatment
    • – fraud on the community
    • – tortuous conduct toward the other spouse (assault, transmitting a sexually transmitted disease, intentional infliction of emotional distress)
  • the financial costs incurred by a spouse while the suit is pending or after final judgment such as:
    • – temporary spousal support
  • Expenses paid to maintain community property such as:
    • – attorney fees and costs incurred
    • – tax consequences of division
    • – capital gains or losses
    • – income generating property
    • – tax penalties
  • Any other factor the court considers relevant to the situation such as:
    • – length of marriage
    • – nature of property

The experienced family law attorneys at the Law Office of Diane St. Yves understand the importance of how the division of property and debt can affect a client. We can help you determine what your property division could be, help you negotiate a fair division of property or present the evidence to the court to seek a just and right division of the assets. Call 281-501-1558 to schedule a consultation or fill in the contact form on this page and meet with one of our family law attorneys to get an evaluation of your case.