Divorce is messy. Emotions often run high, spouses have adverse goals, conflict is unavoidable, and everything seems to get tangled. Divorce can be made even more burdensome when there is a large marital estate that needs to be divided. There are several factors to consider regarding the division of marital property, such as what the court can and cannot divide and why there should be a disparate division of property or not. Dividing property can be an extremely complex and convoluted process. The best way to ensure that complex property is divided in the best way possible is to hire a family law board-certified expert attorney who is familiar with practicing law in Dallas County. If you are contemplating divorce and are holding back because dividing up the marital estate seems overwhelming, the attorneys are here to help you.
It is important to note that there are two types of property in a divorce case, separate property and community property. The court cannot divide separate property, they can only divide community property, so it is essential to determine what property is separate and what property is community. Separate property is returned to the spouse who owns it and is not considered during the division of the marital estate. Community property is divided between the spouses. Over the course of a marriage, separate property and community property may become co-mingled causing it to have mixed characterization.
Community property is any asset or debt acquired during the marriage whether in one spouses’ name, the other spouses’ name, or both spouses’ names. Community property is not always split evenly between the parties. There is typically a disparate division in the split of the community property. The court looks at several factors when determining how to split community property and whether or not to give a disparate division. The court may consider fault in the breakup of the marriage. This includes, but is not limited to, infidelity, cruel treatment, or abandonment. The court may also consider a disparity in the earning capacity between the parties, which party has primary possession of the kids, or if there are anticipated inheritances for either party. The more money the community has, the closer to a 50/50 division you will typically see from the court, regardless of fault in the breakup of the marriage or any other outside factors that may be considered.
On the other hand, separate property is anything owned prior to marriage, anything you inherit, any gift you receive, or monies or other assets received from a personal injury settlement related to pain and suffering. It sounds like it would be reasonably easy to establish what property is separate property, but that is rarely the case. A court will presume that any property is community property unless it can be proven that it is separate property. The person claiming the separate property as theirs bears the burden of proof. As mentioned before, often times separate property becomes co-mingled with community property over the course of the marriage. Proactively, you can keep separate monies in their own separate account. In order to keep the monies separate it will be important not to mix other monies in the account such as salaries or bonuses. It is also important not to add your spouse to the account because that creates the presumption of a gift. If the co-mingling of separate property and community property is hopeless the property can be deemed community property by the court, so it is important to be able to establish exactly what is separate property and what happened to that separate property over the course of the marriage. A knowledgeable attorney can help you hire a forensic accountant to trace the separate property funds. They will be able to help you show what happened to the separate property over the course of the marriage. You can also invoke the inception of the title rule. The inception of the title is the date the spouse first acquired a right to claim an ownership interest in the property that is in question. This date may be before the marriage, which would help to establish the property as separate property.