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Property Division Q&As

While all divorce cases are different, and some property issues can be very complex, we have posted the following most common questions regarding property division here. If you have a question which is not addressed, please feel free to let us know. This e-mail address is being protected from spambots. You need JavaScript enabled to view it and we will add to the list.

Q: What is Community Property?
A:
"Community property" is defined as all property owned by the parties that is not proven to be "separate property". All property is presumed to be community property unless it can be proven to be "separate property".

Q: What is Separate Property?
A:
"Separate property" is defined as being:

[1] Property owned or acquired prior to marriage
[2] Property received by gift;
[3] Inherited property; or
[4] Monies received for personal injuries.

Q: Reimbursement - What is that?
A:
If "separate property" has been enhanced in value during the marriage, the community estate may be entitled to receive reimbursement for the enhanced value of the property. This could happen if you own a house as separate property, but then use community funds to build a game room, the community would be entitled recapture some of the money spent on increasing the value of the home.

Q: How do the Courts Divide Property?
A:
Texas is not a "50/50" state. Our Courts divide property in "just and right" manner, having regard for the rights of each party and the children of the marriage. Property can and often is divided disproportionately in favor of one spouse or another.

Q: What about my 401k or retirement accounts?
A:
Retirement accounts can be divided, either by percentage of an account or by sum. The instrument used to divide a restricted tax account is called a Qualified Domestic Relation Order (QDRO), which partitions the account without any tax consequences to either holder. Once partitioned, the holder can use the account in any way they chose without regard to the other.

Debts

Q: If the judge gives my ex the credit card debt, does that mean that the credit card company won't bother me anymore?
A:
Unfortunately, no. The Court's awards have no effect on third party creditors such as credit card companies, mortgage holders, or any other contractual obligation. The Court can order a division of debts in any manner that the Court deems appropriate. It is important to keep in mind that a Court order effective between a husband and wife is NOT necessarily effective against a third-party creditor. You would have the right for indemnification, though.

Q: What do we do for Income Taxes?
A:
A Texas court cannot tell the IRS what to do. The Court can order either spouse to pay the parties' income taxes thorough the date of divorce, and the court can award certain exemptions (child credit, etc.) However, if back taxes are owed to either spouse, the other may be liable unless an innocent spouse claim is applicable via federal tax law.

Q: What about the mortgage?
A:
Commonly, the same party who receives the house receives the mortgage. However, as noted above, the decree will have no effect on the mortgage holder. Most likely, the mortgage is under both spouses names. Upon divorce, the party not receiving the residence (but is still on the mortgage) would be wise to file a Deed of Trust to Secure Assumption, allowing for takeover of the mortgage upon the event that your spouse defaults on payment.

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