Exploring Spousal Entitlements in Texas Divorce Proceedings
Whether you’ve been married for decades or just recently tied the knot, the decision to end a marriage is never easy, and there are several legal considerations to make before pulling the trigger. The first one is how you will divide your assets. In a divorce in Texas, who gets what can quickly become a complicated and contentious issue between ex-spouses.
According to Texas divorce laws, there isn’t a clear-cut answer, and both parties are subject to the same rules and considerations imposed by the courts. Because Texas is a community property state, all assets acquired during the marriage are considered equally owned by both spouses and can include things like the marital home, vehicles, and bank accounts.
However, despite the state following the “community property” principle, this doesn’t always mean everything will be split 50-50 in a divorce. Courts aim to create a “just and right” division in dividing community property and debts. If you’re deprived of your fair share of marital assets, you may be left without the financial means to move forward. Understanding what you’re entitled to receive in a divorce settlement can help protect your rights.
At Mims Ballew Hollingsworth | Fort Worth Family Law, our attorneys have 75 years of combined family law experience and are prepared to guide you through this emotionally challenging process.
Community Property Division: What the Wife is Entitled to in Texas
Under Texas law, both spouses share equal ownership of anything acquired during the marriage. However, community property isn’t necessarily split 50/50 in a divorce. The state rules for dividing property are similar to those in states that follow the “equitable division” principle, and there are a number of factors the court can consider to achieve a fair division of assets.
The most common types of community property divided in a divorce include:
- Income from employment
- Real estate purchased during the marriage
- Vehicles
- Contributions made to retirement accounts or 401K starting from the date of the marriage
- Bank accounts, dividends, and benefits
- Unemployment compensation
Some examples of debt that may be subject to division upon divorce include:
- Mortgage payments and rent owed
- Loans for personal property
- Credit card debt
- Medical debts
- Student loans
Even if your name is not on a property deed or car title, for example, if you purchased them during the marriage, the court still considers the mentioned items as community property and debt.
Separate property is one exception to the community property rule. As long as you did not commingle it with community property, you may be able to prove that it only belongs to you. Anything owned before marriage or acquired during the marriage as a gift, through inheritance, or as part of a personal injury settlement is considered separate property.
Some examples of separate property include:
- A house purchased before the marriage
- Jewelry gifted by one spouse to the other
- Contribution made to a retirement account before the marriage
- A spouse’s inheritance
- A personal injury settlement paid to a spouse injured in an auto accident
During a marriage, the separate property of each spouse can be converted into community property. To achieve this, both spouses must sign an agreement that identifies the property being converted and specify that the property is being converted to the spouse’s community property. The agreement can include property already in one’s possession or future assets. Without the written partition agreement, proving the conversion of separate property would be difficult. Additionally, even with the written agreement, a judge must still determine if it’s enforceable.
Just and right property division
When spouses agree to a division of property and debt, they will need to provide the court with a written settlement agreement. The court will review the agreement and determine if its terms are “just and right.” If the court doesn’t approve the agreement, a judge may give the spouses a chance to submit a revised agreement or choose to disregard the agreement altogether. The court will divide your property if you cannot reach an agreement with your spouse and will pay special attention to when and how the property was acquired to determine how to divide it fairly and justly.
There are numerous factors the court will consider to determine an equal division of assets. A few examples include:
- The earning potential of both spouses
- The primary caregiver for the children
- Separate property earned by either spouse
- The health of each spouse
- Fault in the breakdown of the marriage, such as substance abuse
- The educational background and future employability of each spouse
Unless both spouses agree, they will need to provide the court with “clear and convincing evidence” to prove that something is separate property. If mortgage payments or car payments were made on separate property with community funds, the non-owning spouse may be able to request a reimbursement of the money spent.
An example that better illustrates this concept is a wife owning a house before marriage and deciding to make it their marital residence once married. The couple pays their mortgage using a joint bank account and builds an addition onto the home. After many years, the husband files for divorce but never signed any formal agreements regarding the house.
In this case, although the house is the wife’s separate property, the husband may seek reimbursement from the wife’s separate estate for all funds paid to it. With the right guidance, you can give yourself the best chance to receive an equitable share of community assets. A skilled divorce lawyer can help you navigate through this complex process.
Spousal Support and Alimony: A Wife’s Entitlement in a Texas Divorce
In addition to a division of property, a wife may also be entitled to alimony, also referred to as spousal maintenance in Texas. Spousal maintenance is the payment of monetary support ordered by the court to be paid by one spouse to the other, usually on a monthly basis and for a specified period of time.
Texas law severely restricts who is eligible for spousal maintenance after divorce. A spouse requesting post-divorce support must be eligible to receive it before a court grants the request. When awarding spousal support, the most common factor the court takes into consideration is whether the spouse seeking maintenance is capable of providing for their minimum reasonable needs.
Additional factors the court will take into consideration in determining whether to award spousal maintenance include:
- The earning capacity of each spouse
- The requesting spouse has an injury or disability that prevents them from earning enough to support themselves.
- The length of the marriage
- The requesting spouse has primary custody of a child that needs substantial care and supervision due to a disability.
- The paying spouse was convicted or received deferred adjudication for an act of family violence within two years before the divorce suit was filed or while it was pending.
Once all relevant factors have been reviewed and the court establishes that the requesting spouse is eligible for support, in crafting the award maintenance, a judge will then have to decide how much money the requesting spouse should be paid and for how long. When making these determinations, the financial resources of the requesting spouse at the time of divorce will be considered first and foremost.
Additional factors that the court may consider include:
- The abilities of the requesting spouse to earn an income.
- The length of the marriage
- Any debts awarded to the requesting spouse.
- The education level of the requesting spouse, including time required for the spouse seeking maintenance to obtain enough education or training to earn sufficient income.
- The age, physical, and emotional health of the requesting spouse.
- Contributions made by a requesting spouse who is a homemaker
- The impact of child support or maintenance obligations that make it difficult for either spouse to support their own minimum reasonable needs.
- Actions taken by either spouse that led to extreme spending, fraud, or other relevant property-related losses.
- Contributions made by one spouse to the education and training of the other spouse
Upon determining that spousal maintenance should be awarded, the court will set boundaries for how long the award can last using the following parameters.
- 5 years of spousal maintenance if the marriage lasted less than 10 years and the supporting spouse was convicted of family violence.
- 5 years if the marriage lasted for at least 10 years
- 7 years if the marriage lasted at least 20 years but not more than 30 years.
- 10 years if the spouses were married for at least 30 years or more.
Under Texas law, courts are required to limit spousal maintenance to the shortest reasonable period that allows the requesting spouse to provide financially for their minimum reasonable needs. Moreover, the court imposes restrictions on how much money may be paid to the requesting spouse on a monthly basis. The Texas Family Code restricts post-divorce spousal maintenance to the lesser of $5,000 or 20% of the paying spouse’s average monthly gross income.
Once the divorce is finalized, either spouse may file a motion requesting that the court reduce the amount of spousal maintenance payments; however, it is important to keep in mind that the paying spouse must continue to pay the original amount ordered while the modification suit is pending. If either party dies or the receiving spouse remarries, the obligation to pay future spousal support ends.
Whether you’re concerned your spouse may seek spousal maintenance or curious if you may be entitled to receive support, you should consult with a qualified attorney who can make a compelling case on your behalf and help you obtain the results you desire.
Determining Marital Debts and Obligations for the Wife in Texas
When compared to other community property states, the laws related to divorce work differently in Texas. In most states, debts acquired during the marriage are divided 50-50 in a divorce. However, Texas laws on debt division are slightly more complex. Determining whether the debt is part of the marital estate is the first step in figuring out debt division in a divorce.
Most of the assets obtained and liabilities incurred during a marriage will typically be considered part of the marital estate and, therefore, equally owned by both spouses. Even if one spouse incurred debt without the other spouse’s knowledge, both spouses may be equally responsible for marital debts. It is also important to keep in mind that if you and your spouse separate for some time before divorcing, any debts incurred by either spouse are technically considered marital debt.
Exceptions to the Community Property Rule
While debt is generally split equally in Texas amongst ex-spouses, there are some exceptions. A court will look at several factors to decide how to divide marital property and liabilities in a “just and right” manner. For example, if you took out a credit card in your name and used it to buy luxuries and items that you alone benefitted from, this type of debt will become directly yours. Conversely, if you used the same debt to buy household essentials, your spouse may become responsible for part of the debt indirectly, and the court may divide it between both parties or assign the full debt to one spouse.
When one spouse claims that property is separate, they must be able to prove this by showing that the property was purchased with separate funds or credit. Additionally, separate debts or debts you may have acquired from the marriage will not be part of the divorce-related debt division. One example of separate debt is a student loan taken out before the marriage. Prenuptial agreements are commonly used to specify separate community property and debts.
Creditors and Marital Debt
Even if the court has ordered your spouse to bear full responsibility for debt incurred by the community estate, creditors are not bound by the terms of your divorce order and may seek payment from both parties if you have joint debt with your spouse. For example, if a court orders your spouse to pay off a credit card that’s in your name and your spouse does not pay off the debt, the creditors will still hold you responsible for that debt. In order to remove liability for debt, the divorce decree alone does not suffice, and additional legal steps must be taken.
If spouses are able to reach an agreement on how to split property and debt, a judge will typically approve the agreement upon reviewing it and determining that its terms are “just and right.” The court will hold a hearing where a judge will equitably divide community property if spouses can not reach an agreement. If you have questions about the unique circumstances of an impending divorce or if your spouse was primarily responsible for running up debt, a family lawyer can help negotiate the right solution for you.
Protection of Marital Assets: A Wife’s Rights in Property Distribution in Texas Divorce
After splitting from their partner, many people considering a divorce may have concerns about their financial future. Perhaps they have a valuable business or a piece of family property with sentimental value that they don’t want to part with. Without the proper planning, your treasured values and estate might be divided in a divorce or even given entirely to your ex-spouse. Given the combative nature of many divorces, it is critical to invest time and energy, preferably before the divorce process begins, gathering information about your assets.
Keeping Separate Property in a Divorce
Before two people marry, each party has a separate estate. Upon marriage, all property is considered owned by the community estate, unless a spouse can prove that the property is owned by their separate estate. Keeping separate property separate from community property through an agreement or by maintaining financial records throughout the marriage can help prevent it from becoming marital property.
To make tracing this property easier, you should keep any statements showing the value of your separate assets at the time of the marriage, as well as any statements showing transactions made in and out during the marriage. It is also important to keep track of any money spent on the other spouse’s separate property, such as renovations on the pre-marital home made by the community estate, to preserve future claims for reimbursement.
Here are some additional examples of the documentation and information you may need to collect:
- Mortgage documents
- Deeds
- Titles
- Receipts
- Bank statements
- Invoices
- Estate planning documents
- Retirement account statements
Ideally, before you file for divorce, you should make copies of all important documents. While it is important to act quickly, if your divorce is already ongoing, you should still be able to get the copies. If you leave the marital house before or during the divorce, you could risk some documents going missing or being destroyed, or you may simply not have access to them. Additionally, you should have a copy of any premarital, post-marital, or partition agreements you signed with your spouse.
Pre and Post-Marital Agreements
Pre and post-marital agreements are useful in designating what would have been community property as separate property and waiving certain claims in a divorce.
For example, these agreements can determine what will happen with the house in the event of a divorce or outline rules to protect future investments and business ventures. While these agreements can be helpful tools for protecting certain assets from being divided, they typically have to be executed well before a spouse files for divorce. You should keep in mind that having to give up some of the assets you had access to during the marriage is inevitable, and you should focus negotiations on the assets you would most like to keep.
When marital and separate property becomes “comingled,” it is difficult to prove which property is separate, and it may be necessary to hire experts who can identify and determine the status of your separate property. Although protecting assets can quickly become one of the most difficult aspects of a divorce, it does not mean it’s impossible, and you should take the necessary steps to secure your assets as soon as possible.
Talk to Our Trusted Fort Worth Divorce Lawyers Today
We know that the division of assets in a divorce is a complex and often emotional process but staying focused on your long-term financial goals and avoiding making decisions based on emotion can keep you from negatively impacting your financial future.
Our attorneys at Mims Ballew Hollingsworth | Fort Worth Family Law have the resources and expertise needed to help you move forward confidently and with peace of mind after a divorce. Contact us to schedule a consultation with one of our lawyers, who can assist you in understanding your legal rights and negotiating a fair settlement.
Constance Mims
Constance Mims has over fifteen years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization. She is Collaborative Law certified and is a shrewd negotiator, not to mention her experience in the most challenging child custody, child support, spousal maintenance, alimony, prenuptial agreements, and divorce issues, both in court and in the appellate arena.
