Division of Marital Property in a Divorce: Part 2

burleson divorce attorneys - divison of marital property photo

Factors Affecting Division of Marital Property Assets

The general rule of asset division in Texas divorces is "equitable distribution." Family law judges apply the rule to divide community property between divorcing spouses using a "just and right" standard. In other words, whatever the judge thinks is fair under the circumstances. It can be helpful to hire a Burleson divorce attorney to help sort out these matters.

Texas law does not require an equal division of marital assets. For example, divorces involving children most often involve unequal division of assets.

Some factors that can justify unequal asset division include: differences in earning capacities (more important for older divorce parties), educational backgrounds, primary responsibility for raising the children (custody), misconduct, age, health, and other needs of the spouse and children after the divorce.

More specifically:

a. Misconduct: A party's misconduct will affect asset division if the conduct is intended to harm the other party, is illegal, or involves acts of fraud, squandering money, spending money for the benefit of paramour, and similar activities.

b. Length of marriage less important than predictions for post-divorce future

Despite popular myth, realistic predictions of what the future holds for a spouse after the divorce are more important factors than the length of the marriage.

c. Health/Disability: A disabled spouse may incur significantly higher medical costs, including ongoing expenses for treatment, that a non-disabled spouse expects.

d. The marital home is not related to division of assets

You may be surprised to learn that your material home is not related to the division of assets, with an exception is for children. A judge will usually attempt to leave children in their home. As a result, the parent with primary responsibility/custody of the child(ren) can expect the judge to award him/her the marital home if it is financially feasible.

e. Division of retirement plans

Typically the judge will divide retirement plans equally. Yet, the judge will always approve an agreement of the parties whether it involves an equal division of the plans or not.

f. Using a Qualified Domestic Relations Order (QDRO) for Division of Spouse's Retirement Plan assets.

A "qualified domestic relation order" (QDRO) is a family law court order that creates or recognizes the existence of an alternate payee under that plan (typically a spouse or former spouse, but can also be a child or other dependant). A QDRO gives the receiving spouse the right to receive all or part of the benefits payable to the participant under the spouse's retirement plan. Given their complex nature, QDRO's are the subject of a separate blog, and will be featured next week.

If you have any additional questions regarding a divorce or potential divorce, call our office at 817-447-0053 to make an appointment with Cade Lovelace or Jennifer Lovelace or fill out the form on the right for a free consultation.