How is Community Property Divided in Texas?

Houston Divorce Attorney Explains Separate VS Community Property

Video Transcript:

Duana Boswell-Loechel: 

When it comes to divorce and division of property, you really need to talk to an attorney to make sure that you're not leaving any rights on the table.

Rob Rosenthal: 

If you're considering a divorce in Texas, do you understand how division of property works there? We're gonna find out right now in this episode of Ask the Lawyer, my guest is Houston attorney Duana Boswell-Loechel. Remember, if you'd like to ask her any questions about your situation, just go to askthelawyers.com. Click the button up at the top that says Ask a Lawyer, it'll walk you right through the very simple process right there. Or you can simply call the phone number that you'll see on the screen during our conversation, Duana good to see you, again, thank you for making some time to help us out.

Duana Boswell-Loechel: 

And thank you for having me.

Rob Rosenthal: 

So obviously, division of property is a big part of the whole divorce proceeding. Maybe you can briefly just explain to us the difference between separate property and community property in the state of Texas.

Duana Boswell-Loechel: 

In Texas, we have separate property, which is any property that you come into the marriage with, or any property received during the marriage from a gift that somebody gives you or from somebody dying and leaving it to you. Everything else is considered community. And everything other than those things that you came into the marriage with or received as a gift or somebody passing away and leaving it to you is considered community property.

Rob Rosenthal: 

And then how is that community property divided up? Is it always just 50-50? How's that work?

Duana Boswell-Loechel: 

So courts will start with a 50-50 division. And then if you can prove fault in the marriage, they'll adjust those percentages. And they'll also look at sometimes the separate property amount that one spouse may have over the other. And there's a lot of factors that they could look at that would cause them to give a disproportionate share of community property to one spouse over the other.

Rob Rosenthal: 

Hmm. And so you said so fault has a play as far as how that's divided?

Duana Boswell-Loechel: 

Yes, it does. So if a court finds that one party was at fault in the breakup of the marriage, some common grounds are gonna be abandonments, adultery, fraud, and they'll look at making the community equalized, based on the benefits that each spouse would have had if the marriage had continued. And they do that by giving disproportionate shares.

Rob Rosenthal: 

Alright. That's interesting. So what if the... Say one spouse owns the residence and it's in their name only, the title is in their name, does the other spouse have a claim potentially on that property?

Duana Boswell-Loechel: 

So it depends on when the property was obtained and how it was obtained, so the courts are gonna look at what they call inception of title and the circumstances of the parties when that title was obtained by the spouse. So if it was obtained during the marriage, it'll still be community property, even though one of the spouses name is not on the deed or on the mortgage. And they'll still divide that property up. So the spouses whose name does not appear is not robbed of that property just because they didn't put their name on the deeds.

Rob Rosenthal: 

Let's talk about retirement benefits, are those community property? And how are they divided up?

Duana Boswell-Loechel: 

So any retirement that is earned during the marriage is community property. And those are divided up just like any other piece of property, they'll start at a 50-50 split. Sometimes courts will award property, instead of splitting everything 50-50. So if one spouse gets the house, and then the other spouse may get to keep all of their retirement benefits, so... But it is divided just the same.

Rob Rosenthal: 

What if the retirement benefits say that somebody had been collecting retirement or retirement benefits for... I'm trying think out loud, they've been putting into, say, a retirement plan for 10 years and then got married and then were married for another 15 years? How does that work Duana?

Duana Boswell-Loechel: 

So that makes it a little bit more difficult to divide, we would have to determine the value of the account on the day of marriage, and the value of the accounts on the day of divorce. And then the difference between the two would be the community property portion. So it'd actually be a mixed account of separate property and community property.

Rob Rosenthal: 

Now we're starting to get complicated, where people like you really are helpful. What about debts or liabilities? Are they considered property, community property? Explain how those work?

Duana Boswell-Loechel: 

Yes, so debts are also divided upon divorce. And once again, several factors that are considered in the division of who incurred the debt for what reason were they incurred? So courts will start with a 50-50 percent split of any debts and liabilities as well unless it can be proven that one spouse obtained them via fraud or the other spouse didn't agree to that debt for whatever reason. Then there's gonna be some reasons why it would be awarded to one spouse and not the other.

Rob Rosenthal: 

And are all debts treated the same whether it's unsecured debt like a credit card or secured debt or say student loans or whatever?

Duana Boswell-Loechel: 

So student loans are always separate property. So it's always gonna go to the person who incurred the student loan. If an asset is attached, so it's a secured loan, it's gonna go with the asset. So if somebody gets the house, the mortgage is gonna go with asset unless the parties have agreed to something different. But typically, the mortgage or the debt is gonna go with the asset that it belongs to.

Rob Rosenthal: 

You've got a lot of experience in this area Duana, what's like say the most important thing you'd want people to know who are, that you want them to understand about division of property when it comes to a divorce?

Duana Boswell-Loechel: 

When it comes to divorce and division of property, you really need to talk to an attorney to make sure that you're not leaving any rights on the table. There are so many different aspects to property division, that it would be easy to overlook something, or to believe that you're not entitled to something. For instance, because your name's not on it. If you talk to an experienced attorney, then they're gonna be able to walk you through that. And if at anytime that you're gonna get any kind of a division of retirement, you have to put in what we call a qualified domestic relations order. And those are almost impossible to do without an attorney.

Rob Rosenthal: 

What about if, say, one spouse is trying to hide some assets from the other spouse? Is that the kind of thing that an attorney can help you find out about that kind of stuff?

Duana Boswell-Loechel: 

Yes, we can help locate certain assets, there are some that are gonna be almost impossible to find such as cryptocurrency, those are gonna be difficult, but we can put provisions in the divorce decree that we'll deal with if they are hiding any properties that it's still subject to future division when it's discovered.

Rob Rosenthal: 

Lots of really helpful information as always Duana. Thank you for making some time to answer our questions.

Duana Boswell-Loechel: 

You're welcome. Thank you.

Rob Rosenthal: 

Gonna take care of this episode of Ask the lawyer. My guest has been Houston attorney Duana Boswell-Loechel. A reminder if you'd like to ask her questions about your situation, go to askthelawyers.com click the button you'll see at the top that says Ask a lawyer and it'll walk you through the very simple process right there, it doesn't cost anything to ask your questions. Thanks for watching. I'm Rob Rosenthal for Ask the Lawyers.

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