I Want My Stuff!
So you want a divorce but you’re worried about losing all of your stuff to your spouse.
Well depending on when you acquired your stuff, how you acquired your stuff, and whose fault the divorce is, you may be able to keep most of your stuff, or at least get more of it than your spouse.
Community Property or Separate Property
Speaking of losing your stuff, divorce isn’t always like a country song where they get your house, your truck, and your dog.
In Texas, property is characterized into one of two categories: community property, which is property obtained during the marriage; and separate property, property owned or acquired by a spouse before the marriage or acquired by gift or inheritance during the marriage.
Separate property is not subject to division during a divorce unless it is by agreement. You and your spouse can agree on the division of property, including insurance monies, income of a spouse, retirement funds held by one or both parties of the divorce, and debts and liabilities, or the Court can divide the property among you after a hearing.
Can’t We All Just Get Along?
Property in Texas can be divided by agreement between the parties, either before the divorce, during the divorce, thru mediation, or by settlement agreement.
The settlement agreement can be done before or during the divorce proceedings. This is called an “Agreement Incident to Divorce or Annulment”. If the Court finds that the settlement is “just and right,” the terms of the agreement are binding. If the Court does not agree that the agreement is “just and right”, it will ask for a revised agreement or set a hearing to decide the matter.
A premarital agreement, or a “prenup”, as we often hear it called, is an agreement between the parties before the marriage vows are said. These agreements include anything from property division, possible child support and spousal maintenance. Both parties must sign the agreement and it is enforceable by the Court. These agreements can be amended or revoked after the marriage if both parties agree.
I Should Get More
Was there fault in your divorce? If so, who is to blame? What is your health like? What about the health of your children? Are there any adult children who may live with you for health reasons? Have you ever worked outside of the home, or can you? Is there a huge age gap between you and your spouse?
These factors can affect the division of the property in a divorce. This kind of split is based on the Court’s discretion and the evidence provided by the parties during the divorce proceedings. If you want a disproportionate share of the community property, you must specifically ask the Court for it and you must show proof by a preponderance of the evidence.
—See Young v. Young, 609 S.W. 2d. 758, 761 (Tex. 1980)
If you are worried that your spouse is getting more than their fair share, or that an agreement that you had in the past will not stay in place now, the best thing to do is to contact an attorney and let them walk you through the steps, so that maybe you can get your dog, truck and house back or at least get to visit your dog three times a month.
–Authored by Emily D. Walterscheid,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479