Can My Spouse Really “Take Everything” in a Divorce?
If you want to file for divorce in Texas, it is normal to be apprehensive. You might have no idea whether your spouse will contest the divorce or if they will fight you on everything during the property division process. To help protect what is rightfully yours, learn whether your spouse can truly “get everything” in the divorce.
Filing for divorce in San Antonio and anywhere else in Texas requires the division of community property. According to state laws, “in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:
- property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or
- property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.”
Typically, this refers to any assets acquired during the marriage, such as real estate, vehicles, fine art, antique vehicles, and recreational vehicles like boats and RVs.
There are exceptions to community property rules, such as:
- Inheritances
- Gifts from friends and family members
- Damages from a personal injury case
These assets remain the property of the receiver, and are considered separate property. Any assets acquired before the marriage or following the separation date are also considered sole property. The same is true of any debts.
How does asset division work in a divorce?
In Texas, community property – AKA, marital property – is often divided 50/50. The goal is to ensure that both parties get an equal share of the assets and debts. While this division can be equitable, that is not always the case. Certain factors could affect the division of marital property include:
- Fault, such as cruel treatment and adultery
- The health of both spouses
- The age difference between the spouses
- The size and value of community property
- Earning potential discrepancies
- Gifts from one spouse to their extramarital affair partner
- Out-of-state property holdings
- Spousal and child support
- Length of the marriage
- Misappropriation of marital assets
For example, say one spouse has always worked while the other spouse stayed home to raise the children. The second spouse does not have the assets or earning potential of their former partner and will likely be granted more of the community assets. This spouse might be able to retain the couple’s main residence and vehicle(s), as well as a vacation home. If said spouse is granted sole custody of the children, they will receive monthly child support.
Texas courts are not known for looking favorably on spousal support, though exceptions are granted in light of factors such as domestic violence and disability issues. If the marriage lasts over a decade and the spouse asking for support does not have the earning abilities of their former partner, they will likely be granted spousal support.
Conversely, say both spouses have worked full-time throughout the duration of their marriage and do not have children. They earned the same amount of money and both hold assets outside of their union. Community property includes one main residence, two vehicles, and two vacation homes. The court will likely divide these assets equally or relatively equally, since neither party will be financially bereft following the divorce.
Why working with a San Antonio lawyer is essential in a divorce
Even if the divorce is not contentious, it is a good idea to hire an attorney to handle everything related to the marriage dissolution. If the divorce is acrimonious, hiring a competent lawyer is essential to avoid losing valuable assets. Without legal representation, a contested divorce can result in losing most or all of the community assets and having to pay spousal support. This especially true if the community property situation is “muddled” and there are questions regarding what is community and what is separate property.
For example, say one spouse was given an antique Rolls Royce as a gift from an older relative. Both spouses enjoyed the vehicle, which included taking it for drives outside of the city and displaying it at car shows. The spouse contesting the divorce might claim the gift belongs to both parties because it was used as a community asset. If the spouse filing for divorce does not have a talented attorney with family law experience to assist them, they could lose the car and other assets.
The same is true of inheritances, such as a vacation home inherited by the “filing spouse” from a family member. The home was given to the spouse “and their family” in this individual’s will. The spouse contesting the divorce could claim the vacation house is community property as per the person’s last will and testament. For the filing spouse to claim the property as theirs alone, they must provide proof of sole ownership. Working with an experienced attorney increases the chances of winning the property. The lawyer might contest the will on grounds of the individual being “of unsound mind” or find another way to show sole ownership, such as the ex-spouse purposefully damaging the home’s interior and exterior.
Working with an attorney is extra important if there is no prenuptial agreement in place, as it reduces the chances of separate property being viewed as community property.
Contact the attorneys at Grable Grimshaw PLLC today to move forward with your divorce. The legal team at our San Antonio-based firm provides the compassionate services you need during divorce proceedings. Call our office or submit our contact form today to schedule a free case evaluation.