In Texas and Arizona, typically, community property subject to distribution in a divorce proceeding is divided between the spouses based on a system that is considered “just and fair” and usually requires a 50/50 split of all assets acquired during the marriage, including 401k plans, retirement plans and income derived during the marriage. However, such a split is rarely that easy to determine or to get both parties to agree to. Therefore, it is essential in any divorce, especially that of a contested divorce, to consult with an experienced divorce attorney or divorce litigation attorney who will ensure that your best interests and your community assets are protected.
Factors to Consider in Reaching an Agreement Inside and Outside the Courtroom
When the parties do not agree as to the division of community assets, the court will listen to evidence and take a number of factors into consideration prior to disposing of the assets of the marriage (by way of a final judgment on property division) through a Final Decree. Such factors that the court will consider include real property and businesses purchased or created during the marriage, assets acquired during the marriage and who received them, relationships outside the marriage, prenuptial agreements,child custody,the ability of one of the parties, usually the lower wage earner, to generate income, and the reason for the dissolution of the marriage.
Complex Property Division
Couples with a large net worth or with significant assets acquired before or during marriage may worry about the division of property process and protecting those assets during the divorce proceeding. Without the use of an experienced divorce litigation attorney or divorce lawyer, complex property division can be long and drawn out and may create the loss of assets if the process is not handled properly. Many strategies can be employed by a qualified complex divorce litigation attorney in order to protect your rights to community assets acquired during your divorce. Such strategies may include a complete audit of personal property, particularly if there is concern about hidden assets or assets held in a foreign territory; and how separate property may have contributed to the community assets and whether there is a claim to that separate property. Additionally, if both spouses own a business together, there may need to be a business appraisal performed in order to determine the equitable piece of the business divisible to each party.
Community vs. Separate Property
Texas is a community property state, which means that assets and property acquired during the course of the marriage are subject to equitable division. All property acquired prior to the union, by contrast, is considered separate property owned by the individual, however, that separate property can be co-mingled into community property. As such, the distinction between community and separate property should be researched closely. And, unfortunately, it is often more difficult to determine which assets fall under which category, especially if there is no specific record of which assets were owned by each party before the marriage took place. This is why if you have substantial assets before marriage, you may want to consider a prenuptial agreement and schedules which support what you had before marriage. In fact, without a prenuptial agreement, couples who are divorcing after many years of marriage may find that family heirlooms or inheritance, if co-mingled, may now be considered communal assets.
Please contact the law firm of Goldstein & Scopellite, PC, located in Dallas, TX, and Tucson, AZ. Goldstein & Scopellite, PC, was established in 2002 and our divorce attorneys know the law. For more information, see our local listing in D Magazine.
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