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PROPERTY DIVISION IN A DIVORCE

In the divorce decree, the court must divide all the parties' community property. The court cannot give the separate property of one spouse to the other spouse, except with the owner's agreement. Therefore, the divorce attorneys must present evidence to help a court decide whether each item owned by the parties is community or separate property.

Unless otherwise agreed to in a written contract properly executed by the parties, community property is all property acquired during the marriage, except gifts and inheritances. The answers to some typical property questions asked of Austin Divorce Attorneys is as follows: Property acquired during the separation but before the divorce is final is community property. Money received during the marriage for personal injuries wrongfully caused by another is not community property, unless it is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. Unless proven otherwise, the court will presume that all property owned by the parties is community property.

Separate property is property acquired by one spouse before the marriage and property acquired during the marriage if it was a gift, inheritance, or received for personal injuries wrongfully caused by another, except when the personal injury recovery is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. Money received from the sale of separate property remains separate property if it can be traced to that separate property and has not become commingled with community property. Property purchased with separate property money continues to be separate property, even if the transaction occurred during the marriage. However, one of the problems in a divorce that Divorce Attorneys are faced with is if separate property and community property are commingled so that the separate property cannot be clearly traced and identified, then all commingled property will be deemed community property.

Unless otherwise agreed to in a written contract properly executed by the parties, income earned during the marriage from separate property, such as rent received from a separate property house, will be community property. However, the increase in value of one's separate property during the marriage, such as appreciation of a rent house, will remain the party's separate property.

In a divorce, the court will not always divide the community property 50/50. The Family Laws state that a Judge in a divorce is required to make a "fair and equitable" division of the community estate. Factors that divorce attorneys typically argue and may be considered by the court are the respective earning capacities of the parties, separate property owned by either party, child custody, and fault in the breakup of the marriage. The court has a great deal of discretion in making the property settlement.

It is important to make sure the court divides all the community property in a divorce because if it does not, the parties will own the property jointly, and either party will have to force a partition by a lawsuit to divide the property. Community property in a divorce that is often overlooked by the parties but should not be by Divorce Attorneys includes retirement benefits that may be due in the future although they are not presently being received, life insurance policies, potential lawsuits arising during the marriage, and prepaid federal income tax.

Debts created during the marriage by either party are usually community debts that both parties are obligated to pay. No agreement by the parties and no court order in a divorce case can affect the right of creditors to attempt collection for either party. While the Court can order one party to pay particular debts in a divorce decree, the creditors can still come after both parties.

The court may order one party to pay the other party's attorney's fees as part of the division of the property or as a necessity for the welfare of the children. However, it should be noted, that no matter how good your Austin Divorce Attorney is, the court typically does not have to award attorney's fees and often does not.

A court cannot order alimony payments after the divorce is final, except by agreement. In some special circumstances, it is wise for the parties to agree to alimony, particularly when the amount of their future earnings will differ widely. A Divorce Attorney’s advice is necessary to ascertain whether or not an alimony agreement would be beneficial in a particular situation.

Any wills should be reviewed at the time the decision to divorce is made. Although a divorce nullifies the portion of a will leaving property to the other spouse, this only occurs when the divorce is finalized by the parties through their divorce attorneys, and approved by the Court; not when the petition is filed.

In a typical Austin Divorce case, the parties usually submit a proposed division of property to the court for consideration if they can come to an agreement. Most divorce attorneys will tell you that although the court is not obligated to accept the proposal, it often will. The best way to really understand the issues facing the split of property owned by the parties is to consult with an Austin family attorney like Carl J. Selesky.


All information in this website is not legal advice, is not intended to be legal advice and is for informational purposes in order to help you in your decision to hire an attorney only. You should consult with as many attorneys as you feel necessary before you choose to hire one. The attorney-client relationship is only formed by written agreement and consent of both of the parties. Any and all medical bills or other costs are your responsibility regardless of the outcome of the case or any contingency fee arrangements with Carl J Selesky. All trademarks and copyrights are reserved. Carl J. Selesky is a licensed attorney in the State of Texas, in State and Federal Courts. Mr. Selesky is not licensed in any other State.
Carl J. Selesky is not certified by the Texas Board of Legal Specialization.
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