Getting a divorce can be stressful. One of the things you might be most worried about is who gets to keep what, and who makes the decision? First, it’s important to note that if you and your spouse can agree on how to divide your property, things will go smoothly. In that instance whatever you and your spouse agree upon will be adopted into your final Divorce Decree and signed off by a Judge.  However, in the event that you and your spouse cannot agree on property distribution, there is no need to worry. There are laws in place to make the determination. 

Texas is a community property state. Community property means that most property acquired during the marriage belongs to both spouses and should be divided equally at divorce. All the property that was acquired before marriage, and some special property that was acquired during the marriage, is considered separate property. During a divorce, each spouse gets to keep his or her separate property. 

In Texas typical property that is considered separate property includes property that was owned or claimed before the marriage such as interests in businesses, money in banking accounts or retirement accounts, stocks, and vehicles. Separate property is not limited to property acquired before the marriage. There are also certain types of property, that even if obtained during the marriage, are considered separate property. Such property includes gifts, even if the gift is given to you and your spouse. Monetary recoveries for personal injuries are also considered the separate property of the spouse, except for monetary recoveries that are for that person’s loss of earning capacity. Lastly, an inheritance of any type is considered that persons separate property.

Under Texas law, all property acquired by either spouse during the course of the marriage, other than separate property, is community property. In Texas, when a couple divorces the law requires that their property be divided in a manner that is “just and right.” Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982). This means that the division of property must be equitable, or fair, under the circumstances. There are many circumstances that the court may consider in determining what is “fair” including disparity of earning power between the spouses, each spouse’s education, each spouse’s health, and fault in the breakup of the marriage. A court may also look at whether a spouse is the primary caregiver for the couple’s children.

Who Gets the House?

Although Courts in Texas still consider what is “equitable” when trying to divide community property, the family home might be treated differently. First, is it important to remember that the family home if acquired during marriage is community property and thus, both parties should technically receive half. If the Court requires the house to be split, they will order a selling of the home where the proceeds are divided evenly between the parties. However, if the divorcing parties have children most courts will award the family home to the parent who has custody of the children. This is in part due to the fact that courts try to minimize disruption to the children lives and also to ensure they have a roof over their heads. However as stated above, each fact and circumstance of the case could dictate how marital property is divided. There are other issues that arise in the distribution of the family home. For example, a mortgage company’s right to payment is not affected by a divorce decree. This means if both parties are on the mortgage and the divorce decree gives the house to your spouse, you will still be responsible for payment in the event your spouse defaults.

Who Gets to Keep the Family Car?

Remember that Texas is a community property state, and all marital property is to be distributed equitably. If a couple owns a car that has a fair market value of $5000, each spouse is entitled to 50% of the value of the car, or $2500. Two possibilities can occur. The first is that the couple can sell the vehicle and each of them split the proceeds, each getting $2500. The second option is that whoever keeps the car should buy the other spouse out with cash or a transfer of some other property worth $2500.

How Do We Divide Social Security Benefits?

According to the Federal Statue, Social Security benefits are not divisible in divorce. However, you can still take advantage of your ex-spouses’ benefits earnings by collecting Social Security benefits based on their earnings rather than your own. A divorced person can collect Social Security benefits based on the earnings of their former spouse if certain conditions are met. The marriage must have lasted at least 10 years and the applicant cannot currently be married. Also, the minimum age to collect benefits is 62 and the former spouse must be entitled to receive Social Security retirement. However, If you remarry, you are no longer an ex-spouse in the eyes of the Social Security Administration. As a result, you will receive your retirement benefits based on the work history of your current spouse rather than your ex-spouse. In the event, you do end up getting married and your second spouse passes away, you will be able to choose which of your two spouses you are able to collect benefits from. 

As an ex-spouse, you are entitled to 50% of your ex-spouses’ retirement benefits. However, in the event that he or she passes away before you do, you can receive the entire amount of his or her retirement benefits. If your ex-spouse remarries and his or her new spouse is collecting benefits based on your ex-spouses working history, there is no need to worry! Your ex-spouse’s new spouse taking advantage of your ex-spouse’s retirement benefits will not impact in any way the ability for you to collect as well.

Do I Get to Keep my Pet?

Texas courts treat pets as they would any other asset. Legally speaking, pets are considered property. If the family pet was acquired during the marriage, it will be considered community property and a court will assign the pet a value. Whoever keeps the pet should compensate the other spouse with cash or another piece of property worth approximately 50% of the value of the pet. Pets acquired before the marriage or pets given as a gift will be deemed separate property. Separate property remains the property of the spouse who owns it. 

It is important to talk with an experienced lawyer if you and your spouse have been contemplating divorce. The Werner Law Group can help you figure out how to protect yourself and correctly address the distribution of your property.