In nearly every divorce case there is a division of property. The division of property includes assets and debts. The first thing I want to clarify is in a divorce case, it does not matter whose “name” the property is in. I hear that all the time from my divorce clients. One divorce client said, everything is in my husband’s name, so I will not get any thing in the divorce. Not true. The general rule in a Texas divorce is anything a person buys while married is community property, even the deed to property, title to a car or boat, a contract only involves one spouse.

The first thing a lawyer does in a divorce regarding property is he tries to determine what the marital estate includes. The first step in the process in completing a sworn inventory and appraisement. Each party has to list all property and debts under oath. Failure to list items truthfully could cause dire consequences in the divorce case. Every lawyer wants to know what separate property is owned so that the property can be confirmed as separate property by the divorce court.

Separate property is property that was owned by a person prior to getting married, property that is inherited, and property that is given as a gift. Some separate property has community property dividends. For example, if a person inherits a large sum of money, then of course it is separate property. But the interest from the savings account could be classified as community property.

Once all the property of the marital estate is identified and classified, the divorce court has to determine how to divide the property. No where in the family law code does it say that parties split their property 50-50 after a divorce. The family code says the court will make a just and right division of property. To me, just and right is just another way of saying “fair.” There are so many factors regarding what may make the property division in a divorce go one way or the other. The usual factors are fault in the divorce, bad conduct, adultery, cruel treatment, contributions as a homemaker, and needs of the parties post divorce.