This is Part 4 of a blog series in which we are answering the common question “who gets what in the event of divorce?” and why. Deriving the answer can be straight-forward or convoluted depending on several factors, so working with a financial expert is often an advisable choice.
Before dividing property in Texas, it is first characterized as either community property (owned jointly), separate property (owned by one spouse exclusively), or mixed property (a mix of both). As discussed in Part 2, all property owned is presumed to be community unless proven to be separate, and, as discussed in Part 3, separate property should be proven through clear and convincing evidence by the spouse making the claim. Often, an evidenced claim to separate property will not be a claim for 100% of an asset but, rather, a portion of it. Let’s take 401(k)s
for example. If both Husband and Wife had 401(k)s through their employers before the marriage and still held these accounts at the time of divorce, each would consider making a separate property claim for these accounts since they were created and held prior to the marriage. However, if continued contributions were made throughout the marriage – most likely through earnings, which is community property – then there would also be a community property element to these accounts. Both accounts would then, most likely, be mixed property. At this point, forensic analysis by a financial expert would be needed to determine what percentage and value of the account is attributable to each separate property and community property.
Ascertaining property character and the appropriate division of debts and assets in the event of divorce can seem complicated and daunting, particularly if you have complex financial intricacies, separate property claims, or an extensive marriage. Our financial experts are sensitive to and aware of the financial and emotional weight of divorce and will offer experienced and compassionate guidance.
If you are interested in a consultation or retaining us as your financial expert, give us a call at(469) 467-4660 or mention our name, Ahuja & Clark, to your family law attorney, and they canreach out to us directly on your behalf.
