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Family and Criminal Law Blog

Friday, December 24, 2021

Why Would Marital Assets Be Divided Unequally?

Texas divorces are filled with important issues that must be resolved in order for the divorce to be finalized. Possibly one of the most contentious issues incident to divorce involves the division of the marital assets. This is understandable considering the idea of your property being divided between you and your soon to be former spouse can feel highly personal, not to mention the fact that this division can have significant impacts on your financial situation for years to come.

With Texas being a community property state, all income and property, with limited exceptions, that were acquired by either spouse over the course of the marriage is considered community property and under equal ownership of the spouses. Thus, in divorce, it is presumed that marital assets will be subject to 50/50 division. There are, however, times when marital assets are divided equally. Let’s take a look at why that would be the case.

Why Would Marital Assets Be Divided Unequally?

As Texas is a community property state, state courts will begin the division of the marital assets process under the presumption that property held by either spouse over the course of the marriage is, in fact, community and not separate property. Should one spouse or the other want to claim an asset is actually separate property, then he or she has the burden of overcoming the community property presumption through the presentation of clear and convincing evidence.

While community property will be subject to division in a divorce, separate property will remain under the ownership of the original owner spouse. Separate property includes that which belonged to a spouse prior to marriage and was kept separate over the course of the marriage. Separate property also includes income generated by separate property as well as that which a spouse acquired individually during the marriage, such as a gift or an inheritance.

While courts in Texas presume that property acquired by either spouse over the course of a marriage is community property and, thus, equally owned by both spouses, courts also have discretion in a divorce to distribute community property in a way that is believed to be fair. One important point to remember about this, however, is that if a court elects for an unequal division of community property, a reasonable basis for such a division must be asserted.

A reasonable basis for an unequal division may be supported when relevant factors are considered in the division process. While the court will start under the presumption that an equal division should occur, this can change as the court weighs a number of potentially relevant factors that could justify an unequal division. A court may consider the following factors, among others relevant to this analysis:

  • The education of each spouse
  • The ages and health of each spouse
  • The skills and earning capacity of each spouse
  • Whether a spouse is the primary caregiver for children of the marriage
  • The amount of separate property owned by each spouse

Texas Family Law Attorneys

The trusted team at Navarrete & Schwartz is here to help you throughout the divorce property. From division of the property to spousal support and everything in between, we are here for you. We are proud to serve the residence of Midland, Texas. Contact us today.


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