While the process of dividing marital assets might seem straightforward (just split everything you own 50/50, right?), most people don’t even know what are considered assets in a divorce. You might be surprised how complex it can become.
Here’s how assets are divided in a divorce in Texas: everything you and your spouse own at the time of the divorce is considered “community property” by default, unless you can prove that it belongs only to one spouse. All community property is divided between you in a way that the court considers fair in light of your specific situation. The following are all considered marital assets:
Money
Not surprisingly, all money must be split in a divorce, regardless of who earned the money or whose name is on the bank account. This includes both actual cash and any stocks or investments owned between the two of you. Monetary assets are often divided evenly between the two spouses, but not always. Awarding one spouse more cash than the other can be a way to balance out other assets that aren’t so easy to divide, like cars or property. Speaking of which…
Home
Any property purchased during a marriage, including your home, land, or other real estate, is considered a marital asset — no matter whose name is on the deed. Divorce property settlements can get complicated, since a house obviously can’t be split down the middle. Couples may agree to sell the property and divide the profit, or one spouse might buy out the other’s portion. In the latter case, if the property is under a mortgage, the person who keeps it will usually refinance so that the loan is only under their name. (Continuing to co-own a property is an option, of course, but not one that many couples want to take.)
Businesses
Yes, a business or profession built during a marriage is generally community property, particularly if it was launched or purchased with joint funds. Even if a business predates the marriage or was only run by one spouse, those earnings may be fair game if marital money is used to grow it. And don’t forget the intangible value of things like branding and customer goodwill. A professional appraisal is usually needed to determine the value of a business. When a monetary value has been set, the couple can handle it like they would a property. This usually means selling the business and dividing the profits, or one spouse buying out the other’s share.
Debt
It may seem backwards that debt is considered an asset, but anything acquired during a marriage — good or bad — belongs to both spouses by default. That includes debts like student loans, mortgages, and credit card debt. How debt is divided in a divorce depends, like everything else, on the judgment of the court. Keep in mind that even if the court assigns a debt to your ex and they don’t pay up, creditors may still try to come after you for it.
Retirement accounts
By now, it shouldn’t come as a surprise that any interest accrued in an employment-based benefit plan like a pension or 401(k) during the marriage is considered community property and can be divided however the court sees fit. Cash accounts are usually paid out in the months following a court decree, while retirement and pension plans are not distributed until the usual time. If both spouses have separate and roughly equivalent retirement plans, the simplest route is probably to just let each person keep their own.
Insurance policies
A life insurance policy purchased during your marriage, with marital funds, is a marital asset. That means that even if the insured spouse changes the beneficiary on their life insurance policy, the ex-spouse is still entitled to 50% of the payout after the policyholder’s death. You’re also not off the hook for policies purchased before the marriage; if you continue to pay into the policy during the marriage, the percentage paid for with community funds may be considered a marital asset, entitling the other spouse to a prorated portion of the payout.
Taxes
As if taxes weren’t already enough of a headache, couples who are divorcing must also figure out who has to pay for what. The specifics of your taxes on the year of your divorce can get complicated depending on how long you have been separated and whether or not the separation was legally recognized. In general though, you can expect to pay half of all the taxes collectively owed by both you and your spouse (income, property, etc.) for the part of the year prior to your divorce. Going forward, you will be taxed only on what you took out of the marriage and any future earnings.
Just because you don’t see something on this list doesn’t mean it can’t be considered a marital asset. What a spouse is entitled to in a divorce can vary.
Virginia Hammerle is the President of Hammerle Finley Law Firm. To sign up for the firm newsletter, email legaltalktexas@hammerle.com. Employment opportunities available.
