One of the most potentially divisive areas in divorce is the division of the marital property . It should be noted that a marriage relationship under Texas creates three (3) different types of property. The first type of estate is the community property which includes the property owned and the debts owed by both parties. The other two types of property are the separate property owned and debts owed by the husband and wife, known as the separate estates.
Under the Texas Family Code , courts in Bexar County and greater San Antonio operate under the assumption that any property acquired during the marriage is community property. However, the label of community property does not apply to spousal property acquired before the marriage or property acquired by the spouse by gift or inheritance or recovery for personal injuries. Often in a marriage, there will be an intermingling between the marital community property and separate property of each spouse. For example, an economic contribution claim can occur where the principal on the debt of a separate property is paid through community property income. A San Antonio divorce lawyer can calculate potential economic contribution claims based on the type of assets involved and specific formulas through the Texas Family Code. If a spouse contributes time and effort to paying off the principal on the separate property of another estate, a reimbursement claim can arise as well. Economic contribution and reimbursement claims can be placed as liens or judgments on separate property.
There is a common misperception that in Texas, community property is automatically divided equally between the parties, i.e. Texas is a 50/50 state. This perception is not necessarily true. Bexar County courts for example take into account various factors including the fault of the parties in divorce, earning capacity, and the amount of separate property.
There are various ways to deal with community property especially in an uncontested divorce. There are various arrangements that can be worked out with a home with equity and a mortgage. The parties can also work out joint credit card debt and cars financed in both names. Be very careful if you believe your ex-spouse will be paying a debt. Creditors are not bound by the terms of a divorce decree and can try to collect the debt from either party, regardless of the individual awarded the debt in the decree. There are much better alternatives than simply trusting an ex to assume the debt. Transfer the credit card debt to another card and / or refinance the cars.
In an uncontested San Antonio or Bexar County divorce, the attorney can ethically represent only one party. In order to protect himself and you, a San Antonio divorce lawyer will have both spouses complete a sworn inventory and appraisement of their community and separate property assets. If it turns out that one of the spouses failed to disclose some asset or debt, the sworn appraisal will be helpful in demonstrating a spouse committed fraud in obtaining the divorce settlement.
Even in an uncontested divorce , an experienced San Antonio and Bexar County family and divorce attorney can be vital in ensuring a fair and equitable division of marital property.