Property Division/Property Distribution

Evaluating the Nature of Marital Proeprty

In divorce cases, there are two categories of property: separate and community. Separate property is exclusively owned by one spouse, which may include property acquired before the marriage or designated as separate through a prenuptial or postnuptial agreement. In addition, money obtained in a personal injury case or property received as a gift, inheritance, or bequest is considered separate property. Conversely, property acquired by either spouse during the marriage is generally presumed to be community property. A spouse who challenges the characterization of community property must prove by clear and convincing evidence that it is separate property.

Property Division

If the parties involved in a divorce case can reach an agreement on how to divide community property, they can submit the agreement to the court for approval. However, if the parties cannot agree, then Texas law requires that the court divide the community property in a way that it considers fair and equitable. This does not necessarily mean that the court will divide the property equally, but will take into account factors such as the contributions made by each party to the community property, the age, health, and earning capacity of each party, and the primary caretaker of any minor children. The court may also consider tax implications and any fault in the divorce when determining how to divide the community property. To ensure that you receive a fair distribution of assets in a divorce, it is essential to seek the guidance of an experienced family law attorney.

Decree Distributing Property

When the court issues the divorce decree, it will also direct the division or distribution of community property in a way that it finds equitable. This will include both liquid assets and tangible property, such as real property, as well as intangible assets like the right to proceeds from any life insurance policy or retirement benefits. In cases where the court orders a portion of one party's retirement plan to be awarded to the other, a Qualified Domestic Relations Order (QDRO) is typically employed to facilitate the division of property. It is important to note that the QDRO is distinct from the divorce decree and outlines the specific terms for assigning a portion of the benefits to the former spouse. The QDRO must meet certain requirements and gain approval from the retirement plan administrator before it can be implemented.