People make so many assumptions about how property is divided in a Texas divorce, but the law is complicated, and the appropriate property division is often not what you think. “Property” includes everything that is owned or owed at the time of divorce, whether held jointly or individually by the spouses, from real estate, bank accounts, investments, retirement, small businesses, bonuses, vested or unvested stock units, credit card debt, tax refunds, and liabilities, just for starters. Unless any of this property can be proved to be separate property, it is all considered to be marital property and must be divided up in the divorce. How the marital property is to be divided is also not as most think. Instead of dividing each asset and liability down the middle, the entire marital estate is identified and valued, and totaled, and the division occurs at the bottom line, with each spouse receiving all of one asset or liability and only a few assets or liabilities divided between them to achieve the desired property division.

Whether negotiating your property division, no matter how complex, through settlement negotiations, mediation or the collaborative law process or if you find yourself litigating your divorce in court, our Austin property division attorneys at Lazar Law can provide you with the right kind of advice and representation to make sure your needs and interests are met. Learn more below about the law regarding property division in a Texas divorce, and contact Lazar Law for assistance in the division of marital property in your Austin-area divorce.

What is Community Property and How Is It Divided?

In Texas, the marital property to be divided in a divorce is called community property. Community property includes all assets and liabilities acquired and all income earned by either spouse during the marriage, regardless of in whose name the asset or liability is held. In contrast, separate property is property acquired prior to marriage or by gift or inheritance.

Texas law presumes that all assets and liabilities at the time of divorce are community property. In order to divide the community property, we must have a value for every asset and every liability. Accurately valuing a property is, therefore, an essential aspect of the property division in a Texas divorce. At Lazar Law, our Austin divorce lawyers understand the intricacies of complex property valuation, including business valuations, pension plans, stock options or profit-sharing, and other assets whose value is not easily identified by a balance on an account statement. When needed, we work with a team of valuation experts, whether it is properly valuing your home, your business, or your employment benefits, to assure that all community property is given an accurate value so you get a fair shake in your property division.

What Happens with Separate Property in a Texas Divorce

It is important to identify separate assets and funds brought into the marriage and determine if separate property claims can be made at the time of divorce. Only if you can prove separate property by clear and convincing evidence will a separate property claim be acknowledged, either in settlement negotiations or by the courts, and the work that must be done is complex. In most cases, a forensic expert must be used to trace separate property at a level that meets the standard. At Lazar Law, we will help you evaluate whether it is worth pursuing your separate property claims, and if it is, we do the work to trace separate property so that your separate property is confirmed. Of course, defending against separate property claims and rebutting a tracing expert’s report are also important. When divorces involve claims of separate property, you need an Austin divorce attorney who understands the complexities involved and who is willing to do the work to address separate property claims at the level of detail necessary to prevail.

Can Community Property Be Divided Unequally?

Yes. There are many situations in which a disproportionate division of the marital estate is appropriate. In the settlement context, a disproportionate division can meet the couple’s interests by dividing the property in creative ways.

At the courthouse, the court can, in fact, make an unequal division of the community property when it would be “just and right” to do so. There are many different reasons why a judge may decide an unequal division is called for. Some common situations include the following:

• One party is at fault for causing the breakdown of the marriage, such as through cheating or abuse
• The spouses have a vastly disparate earning capacity
• The spouses have vastly different separate assets
• Retirement benefits or other benefits of a spouse are lost for the other spouse upon divorce
• The respective age and health of the spouses warrants an unequal division
• One spouse wasted community assets or made large gifts of community property to third parties
• The child custody arrangement favors making an unequal division of the community property

If you are seeking or opposing an unequal division of community property, we’ll gather the facts and evidence and develop a strong case with compelling arguments in your favor.

For help with the property division and all other issues in your Austin divorce, contact Lazar Law at 512-477-1600 to discuss your concerns with an experienced and successful Austin property division attorney.