Property Division FAQ
At Weinman & Associates, P.C. in Austin, we have found that the people we represent like to understand how property division works. We believe that an educated person is an empowered person. For that reason, we have provided answers to some of the most common questions about division of property. To learn more, you can contact us at any time to speak with an attorney who can answer your questions.
Is Property Divided Equally?
Equal means that everything is split 50-50. In some cases, this type of division of property is appropriate. However, Texas law calls for a division of community property that is equitable. In other words, property should be divided fairly, but not necessarily equally.
To determine a fair division of property, many factors need to be looked at. Each spouse’s earning power will need to be considered, as well as the length of the marriage. The grounds for divorce may play a role as well. Ultimately, the balance may need to be shifted so that one spouse gets a larger portion of the property to compensate for other financial imbalances. Our goal is to make certain that you get an outcome that is fair.
What Does It Mean That Texas Is A Community Property State?
You may have heard Texas referred to as a community property state. Community property refers to all property acquired during the marriage. In Texas, all community property is subject to division during divorce. Be aware that all property is presumed to be community property, until one spouse provides evidence to show that it is separate. Separate property includes property owned prior to the marriage. It is not subject to division. We take great care to isolate and protect your separate property during this process.
Is All Property Subject To Division, Even Retirement Benefits?
Unless designated separate property, all property is considered community property and subject to division. That includes pensions, 401(k)s and other retirement accounts. These accounts require a special document, called a qualified domestic relations order (QDRO) in order to be distributed from the account holder to the other spouse. We are skilled in the creation of these orders when appropriate.
How Are Businesses Divided?
Division of a business is one of the most complex aspects of property division. There are many issues that need to be reviewed, starting with the date that the business was formed in relation to the marriage. How was the business operated? Was it truly a family business, in which both spouses participated in running the business, or was it operated solely by one spouse? Was the business owned in partnership with individuals outside of the marriage? Will the business continue following the divorce, or will it be dissolved?
The issue of personal goodwill versus commercial goodwill also needs to be considered. Personal goodwill refers to the reputation the business has achieved that is tied directly to the business owner. Commercial goodwill refers to the reputation that is tied to the name of the business itself. Personal goodwill is part of the value of the business that is not subject to division, whereas commercial goodwill is. We have the experience to address this issue and all others, working with experts in business valuation as appropriate, in order to pursue a fair division of the business asset.
Does Child Custody Impact Property Division?
Child custody arrangements may impact property division. Texas law calls for equitable division of property based on a variety of factors, one of which is parenting time. The parent with custody of the child may be the one who gets the family home to raise the child in, and may get a larger portion of the property in general. We will review child custody plans and all other factors as we craft a case designed to get you a fair division of assets.