Who divides the property in a divorce in Texas, the people getting divorced or the courts?

Question

My mother is getting divorced and her lawyer says the court divides the property, where as her soon to be ex husbands lawyer is saying it is up to them to divide the community property? so which is it? she's confused and i can't help her i know nothing of the law.

Answer 1

Two pieces of information for you. I hope this helps!

FROM: http://www.enoslaw.com/practiceareas/Property-Division-Texas.asp
How is community property divided?
The best way to divide community property is for the spouses to agree on a fair division. If the husband and wife cannot agree how to divide things, Texas law requires the judge to divide community assets and liability in a way that is “just and right.” This does not always mean that community property is divided evenly.

When will a judge make an uneven division of property?
The judge can award an unequal division of community assets and/or debts after considering:

* Who was at fault in breaking up the marriage
* Earning capacities and education of the parties
* The parties’ ages and health
* Any special needs of the children
* The separate property owned by either spouse

How does the judge know what property the parties have and what it is worth?
Each side will file a “sworn inventory and appraisement” that lists all property and debts (community and separate) and shows the approximate value or amount of each.

Often, the two inventories do not agree, but the judge uses them as a guide to deciding the property division. If the case goes to trial, evidence will be submitted about the nature and value of property. Sometimes, the parties hire expert appraisers to decide what land or businesses are worth.

How are community debts divided?
Community debts are also divided by the court on a “just and right” basis. A divorce decree cannot rewrite a mortgage or loan agreement, however. If, for example, the judge decides the husband must pay a certain loan but the loan was taken in both parties’ names, the creditor will usually look to the wife to pay if the husband does not or cannot repay the loan.

FROM: http://www.raggiolaw.com/txart05.html
- Texas Marital Property Issues -
PROPERTY

* There are two major categories of property in the State of Texas:
community property and separate property.

Separate property is:
1. property owned prior to marriage;
2. property acquired at any time by gift or inheritance;
3. recoveries for personal injuries sustained by a spouse during marriage (except for loss of earnings); and
4. property exchanged for above items 1 - 3.

Community property consists of the property, other than separate property, acquired by either spouse during marriage. This is true even if only one spouse has possession of the property. Just because one spouse is named on the title, deed, or account; one person receives the asset as payment for personal services (ie: salary); or the asset will not be paid until a future date (ie: retirement) do not make it separate property. There is a presumption that all property possessed by either spouse is community property. Separate property ownership must be proven by clear and convincing evidence. The most common way of proof is by tracing the asset from the date of acquisition to present date. If the asset is money, and has been deposited into a joint account, or into an account with monies which would be considered community property (ie: salary) has been deposited, the separate property may become commingled to the point that it is not possible or cost-effective to prove its continued existence.

In Texas, the appreciation or increase in value of separate property is generally considered separate property. However, reimbursement may be due to one spouse or the community for contributions made during the marriage to enhance the value of one spouse's separate estate. However, income or interest earned on separate property is community property. It is necessary to advise the court if you own separate property or if you believe you have a claim for reimbursement. Be sure to talk to your attorney about these issues early in your case.

The reimbursement area has been greatly expanded by the concept of Economic Contribution. Essentially where pre-2001 law gave all the appreciation in a estate's property to that estate, the concept of economic contribution allows the sharing of the increase in value attributable to the other estate's contribution to the property. It's a refined specie of reimbursement, but also shares in the appreciation of the property.

Ownership of one spouse's separate property cannot be awarded to the other spouse.

Community property is divided in a just and right manner. This does not necessarily mean equally. However, an equal division is a good rule of thumb. The value of all the property is to be determined as near as possible to the date your divorce. "Value" usually means the price at which the item could be sold currently on the open market. Insurance appraisals are at replacement value, which is usually higher. It is also necessary to determine current debts. Your lawyer may provide you with forms to assist you in providing this information. In most cases, your attorney will need to transcribe this information onto a formal Inventory and Appraisement which will be filed with the Court and exchanged with your spouse's attorney. It may be necessary to hire appraisers to value your home, business, or retirement plan.

You may also own property in a type of joint tenancy, which may or may not involve the right of survivorship. Be sure to tell your attorney if you believe you may own a bank account or other property as a joint tenant so that steps can be taken to revoke the survivorship provisions if possible.

MARITAL PROPERTY LIABILITIES

* If you have liability to a creditor, that liability will continue until the obligation is paid regardless of the terms of your divorce decree. Not all debts incurred during marriage are the responsibility of both spouses, but this is a highly technical and confusing area of the law. The decree may order your spouse to assume full responsibility for payment of certain debts. However, the decree is not binding against the creditor. They can sue you if your spouse does not pay. If you are found liable, your remedy is to sue your former spouse for failing to comply with the decree and obtain a money judgment against your former spouse. For more detailed information, see the article about Marital Liabilities.

Since a great deal of property is exempt from execution under state law, and cannot be taken to satisfy the payment of a debt, you may not be able to actually collect the money judgment for many years, and will have to renew it every 10 years to keep it valid. Additionally, your former spouse may file for bankruptcy and attempt to extinguish the judgment. If there are funds available for payment of debts, you should consider utilizing these funds instead of continuing to be liable. If your spouse is going to keep the family home, you should encourage and cooperate with attempts to refinance so that you can be taken off the mortgage. This may not be applicable or practical in many cases, but you need to be aware that you remain liable to the mortgage lender in the event of default even if your spouse is assigned total responsibility.

There is a way to transform separate property into community property, and to transform community property into separate property, and such transformation does not have to be part of a divorce action. Ask your lawyer if either of these procedures are appropriate for you.

Answer 2

The court only divides the property if the parties can't agree. Texas is a community property state and all assets and debts are presumed to be community property. The exceptions are property acquired before marriage or property acquired during marriage by gift or inheritance. If your mother and her soon to be ex can agree, the Court will approve the agreement unless the Court feels it's very unfair. If it's unfair, you want the Court to step in. Generally, the Court approves what the parties have agreed to do with the property and debts. In a sense, the answer is both--the Court has the power to approve the agreement. It's best for all if they can work it out themselves.

Answer 3

All states allow for a couple to dissolve a marriage on there own terms meaning that if a couple can agree to divide the assets of a marriage the courts are happy to stay out of it. However some states that have no fault community property laws require a court to approve the division of assets to ensure both parties understand what is happening. I do not believe Texas is one of these states however.

Answer 4

Yes, Texas is a Community Property state based on Mexican law precedent. The child's welfare comes first. There is only child support. No alimony. Any co-mingling of funds makes community property. Any small receipt for home-improvement makes a house community property. Like the others say, if there can't be an agreement, then the courts will arbitrate.

Answer 5

Most courts in America leave the final decision or judgment up to the jurisdiction of the courts. However, the parties are always free to make an agreement and submit that to the court, saying what they want to do. The court will examine their agreement and if it is reasonable and there are no objections, they will adopt the agreement as the ruling of the court. Thus, both attorneys are correct. The parties can make the divisio but they have to submit it to the court for final approval.
I strongly encourage my clients to communicate and make an agreement for submission, otherwise the court will force a division upon them that may not be to their liking.

Answer 6

It could be either....

If the parties had a pre-nup to handle property split, or if the parties work out a divorce settlement to handle property split -- then the court will generally accept any reasonable agreement between the parties.

I believe Texas is a community property state, so certain limits apply if one spouse tries to take it all.

The ultimate decision is up to the court -- but the court will go along with any reasonable settlement that does not violate state laws.

Answer 7

If they can reach an agreement that is fair, then they can divide the property. The court still has to approve the division, however if it is fair and everyone agrees the court would let the division stand. If they can not agree, then the court makes the division.

Answer 8

Generally, it goes to arbitration first. If the property distribution can't be settled this way, then it will be decided by the courts. Tell her to try and get it done in arbitration if at all possible, for time's sake.

Answer 9

It's a little of both actually, they negotiate - if they come to an agreement, more than likely the judge will accept it - if they can't agree, the judge will hear arguments from both sides, and make the decision himself.

Answer 10

It can be both if they can not divide it up the court will

Answer 11

if he/she agree then they can divide property, other wise the court will step in and do it for them