Property Division in a Divorce

Texas is a community property state. It is presumed that all property owned by married persons at the time of the dissolution of the marriage, whether by death or divorce, is the property of both the husband and the wife. Likewise, any debts incurred during the marriage are presumed to be incurred by both the husband and the wife. Like community property, community debt must be divided during a divorce.

Since Texas is a community property state, in theory this means that each party is entitled to 50 percent of the property obtained during the marriage as well as responsible for 50 percent of the debt incurred during the marriage. However, a party is entitled to retain his or her “separate property,” meaning property he or she brought into the marriage, property he or she inherited, or property given to that spouse as a gift from a third party. While Texas is a community property state, the community property and debt can be divided in a manner that the court deems just and right with respect to the rights of each party and the children of the marriage. This essentially means that the property and debt does not have to be divided equally between the parties. The court will consider many factors including the size of either spouse’s separate estate and any fault in causing the divorce.

What Happens To The Family Home?

One of the most common problems that arise when a couple owns a family home together is determining who or how one party may be removed from the mortgage note. This is problematic because when a married couple purchase a home in Texas, the property is put in both names irrespective if the mortgage is only in one party’s name. In most cases, the mortgage is in both of the parties’ names, too. Since the lender of the mortgage is not a party to a divorce action, the lender may still pursue either spouse for collection of the mortgage. Therefore, a divorce decree cannot remove the liability owed on the property by either party, even if the decree explicitly states that one party is being awarded the property over the other party. If the parties purchased the home together and the party receiving the property cannot refinance the home in his or her name, then the parties will execute a special warranty deed and a deed of trust to secure assumption. A deed of trust to secure assumption provides the party not receiving the property a mechanism to regain control over the property should the other party default on it in the future.

Contact Our San Antonio Family Law Attorneys | Representing Clients Throughout The Region

If you are going through a property dispute in a divorce case, put the experience of Bineham & Gillen, PLLC, behind you. Our firm offers a free consultation so we can understand your case and present options to you. Call 210-541-6800 today to set an appointment with one of our Family Law attorneys or contact Bineham & Gillen, PLLC.