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Divorce and Property Division in Texas

Surendran Koran Attorney & Counselor at Law, PKS Law Firm, PLLC

Surendran Koran
Attorney & Counselor at Law, PKS Law Firm, PLLC

Question: I am in the process of getting a divorce in Texas. How will our shared property be divided?
Answer: Texas is a community-property state. In most cases, all income earned, and all property acquired by either spouse during marriage is community property and belongs to both spouses equally. As a result, it must be split equally when the spouses divorce. Likewise, all debts that either spouse incurs during the marriage are considered community debts shared equally by both spouses. However, if there are “just and right” reasons why assets should be distributed in a different manner, courts may order an unequal result.
Courts work on the presumption that all property in a marriage is community property. The most common types of property in divorce proceedings are real property, such as the family home; personal property, such as jewelry and clothing; and intangible property, such as income, dividends, and benefits. The spouse who wants to keep an asset free from division must prove that it is separate property: that is, anything that belonged to him or her before marriage and was kept separate throughout the marriage, or property that was given to one spouse alone during the marriage. The latter might be a gift from a friend or a family member, or an inheritance.
Also remember that if one spouse received money from a lawsuit or settlement because of personal injuries, that money remains the separate property of the injured spouse, unless it includes money that was intended as compensation for the loss of earning capacity during the marriage.
Courts do have discretion when it comes to what they consider fair property distribution. But if they opt for anything other than equal distribution, they must have good reason. Variables in the process may include differences in the age, education, and health of the spouses, as well as differences in earning power, skills, and business opportunities. Courts also may look at whether a spouse is the primary caregiver for the couple’s children, and the amount of separate property each spouse has, among other facts and circumstances. Also important: whether one spouse was at fault in the failure of the marriage.
Throughout the process, divorcing spouses can agree between themselves how to split community property. Usually, a court will accept a negotiated agreement. On the other hand, if the spouses cannot work together, or if there are areas of disagreement, the court will decide for them.
In my next column I will consider how foreign properties are handled in divorces.

Disclaimer: Information in this column is meant to be general and informational; it is not intended as legal advice. Consult an attorney regarding your personal situation before you take any action that has legal consequences.
BIO: Surendran Koran is an Indian-born attorney in private practice in the Houston area. He is the founder of PKS Law Firm, PLLC. He is licensed to practice in Texas, United States District Court Southern District of Texas, and in India. To contact please email: adv.surendran@gmail.com


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