Divorce clients are always interested in knowing which property they will be permitted to keep after the divorce is completed. The determination of which property each spouse will be awarded in the divorce generally depends on whether the particular property is classified as separate property or community property.
Separate property includes: (1) property already owned by a spouse before the date of the marriage; (2) property acquired by a spouse during the marriage by descent, devise, or gift; and (3) any personal injury damages recovered by the spouse during the marriage, except any recovery for loss of earning capacity. During the divorce, a spouse has the burden of establishing that a piece of property should be classified as his or her separate property, and if the court concludes that the property is properly classified as separate property, the spouse claiming ownership should be awarded the property.
Community property includes all property other than separate property, acquired by either spouse during the marriage. Community property may also consist of property possessed by a spouse during the divorce process. However, if a spouse can prove by clear and convincing evidence that the property should be classified as separate property, that spouse should be awarded the property. Community property can include cash, savings accounts, 401(k) accounts, IRA accounts, life insurance, income, rental income, retirement benefits, vehicles, bonds, stocks, real property, and anything else having value.
If property is properly classified as community in nature, it is subject to just and right division by the court, with due regard to both spouses’ rights and the rights of the children.
Courts consider the following factors in making a just and right division of community property:
- Fault in the divorce
- Spouse education
- Spouse health
- Spouse earnings
- Spouse future earning capacity
- The spouses’ debts
- Which spouse will have primary custody of the children
- The nature of the property at issue
- Each spouse’s inheritance prospects
- The property’s tax consequences
- Any fraud committed by either spouse toward the community estate
Many divorces are settled out of court. However, some cases require a trial in which a judge will determine the just and right division of the community estate. It is difficult to predict with guaranteed accuracy how a court will divide the community estate at trial. To ensure that your attorney is able to argue successfully in favor of your claim to the community estate, it is crucial that you provide him with all the information relevant to the community and separate property you believe you are entitled to be awarded.
The Dallas divorce attorneys at Reed Law, PLLC represent individuals in Dallas County, Collin County, Tarrant County, and Denton County in a variety of family law matters, including:
- Child Support
- Spousal Support
- Prenuptial Agreements
If you would like to discuss your case with knowledgeable, experienced family law and divorce attorneys in Dallas TX, please contact us today at (214) 570-9555 for a free phone consultation.