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by Marivonne Essex

If you’re contemplating a divorce in Texas, the fact that Texas is a community property state will be very important to you if either you or your husband has assets, such as real property, savings accounts, automobiles, pension plans, 401(k)’s, or anything else of value. The first misconception to clear up is the issue of title. The name on the title to the asset has no bearing on whether it is an asset which will be considered as community property. If the item of value was acquired during the marriage, regardless of the name on the title, it is presumed to be community property. This means that, regardless of the name on the title, if the parties cannot agree on how to divide it, the judge must presume that it is an asset belonging to both parties and the judge makes the decisions about who owns it after the divorce. The caveat is that the presumption can be rebutted and the judge can make a different decision under the right circumstances. How can the presumption be rebutted? If the property was acquired during the marriage but was a gift or was inherited, and the party claiming it as such can prove how it was acquired, the property gets the label “separate property.” A party cannot be deprived of assets considered “separate property” under the Texas Constitution, so a party who has “separate property” in a divorce gets to keep that property and the judge cannot divide it with the other spouse. The judge divides only community property (and debt, which is an entirely different issue for another date).

How does the judge in a divorce divide community property? The Texas Family Code, which is the primary set of laws which divorce courts follow, says that the property division must be “just and right,” an altogether subjective phrase if I have ever heard one. The fact is, the judge listens to all of the evidence and makes a decision on how to award the property. He or she can take into consideration many other factors, such as whether one spouse has more skills and/or earning capacity than the other; whether one spouse has been out of the job market for a significant amount of time; whether one spouse has a significant amount of separate property; whether one has committed an egregious act such as blatant adultery, etc. The judge has the right to award all the items of value to one spouse and not the other, and any kind of division in between. In most cases, however, the judges in Harris and Montgomery County, Texas, where I practice, tend to divide the community property 50-50. In cases of vast differences in earning abilities or egregious acts, one spouse may get 5% or so more than the other, but it doesn’t vary much. In too many cases, there is NO community property to award and one spouse may be left to fend for herself or himself. That seems to be the hardest concept for people to understand. It seems very unfair, but if there is nothing to divide and the breadwinner is a low or medium wage earner, one spouse may be left with nothing, dependent on relatives or welfare.

This is the day and age of internet divorces and, as a divorce lawyer for 27 years, the scariest thing about people doing their own divorces is that they don’t usually have the legal knowledge, or the information about what is valuable in the community, to make an informed decision. Once the divorce decree is signed by the judge, changing the division of property in Texas is almost impossible. There is a tendency for people doing their own divorces to say, “I don’t care about his pension or her 401(k). I just want to get a divorce.” But what if you knew that the 401k is worth $50,000 or that pension is worth a lump sum of $250,000? Would the decision be the same? A lawyer will discuss all this with you so that when you make a decision, it is an informed one, just as if you were making a significant medical decision. Don’t be penny wise and pound foolish. Sometimes it just pays to pay – for a good lawyer.