Debunking 5 Common Myths Texans Have About Property Division After Divorce

Divorce is a daunting process for anyone, and it is easy to see why people are scared of it. One thing that makes the process even more overwhelming is the number of misconceptions people have about it, especially when it comes to property division. To help clear things up, this article debunks five of the most common myths about asset division in Texas divorces. 

Keep reading to learn more about:

• Why property is not always (and is only rarely) divided 50/50 in a divorce in Texas. 
• Why many assumptions about automatic ownership or retention are wrong. 
• Whether things like inheritance gifts and business ownership are protected during divorce.

Myth 1: Property Is Always Split 50/50 In A Texas Divorce

It’s common for people to assume that property is split evenly in a divorce, but in Texas, this is almost never the case. Texas law calls for a “just and right” division of property, which means the court decides what’s fair based on various factors.

Of course, this may not always align with what you think is fair. The truth is, it simply depends on what the court decides. Sometimes, the split is close to 50/50, but it could be split 60/40, 55/45, or even 70/30, depending on the circumstances. In any case, not every asset will be divided down the middle – and it is important to understand this as you come into the process. 

Myth 2: The Marital Home Always Awarded To The Wife In Texas Divorce Cases

Few things are automatic in divorce law, and who gets the marital home is no exception. 

While it’s common to see mothers given temporary exclusive use of the home during the divorce process, this is often due to financial differences or because the mother has primary conservatorship of the children. (This is because the court typically aims to minimize disruption for the children, especially if their schooling is tied to the marital residence.)

However, this doesn’t mean the husband’s interest in the home is lost. The husband still has a legal claim to the property, and in some cases, husbands are awarded temporary use of the home while the wife moves out. These decisions are made on a case-by-case basis, depending on the specific circumstances of the couple.

For example, if the husband owns separate property, like a rental home in Florida acquired long before the marriage, and has substantial retirement savings, while the wife has a smaller retirement account and no other residence, the court may award the wife a larger portion of the marital home. 

This doesn’t mean she gets the entire home, but she may receive a bigger share to ensure a fair and just division, which could include a claim for a disproportionate share of the property.

At the end of the day, each situation is different, and the court will look at the overall financial picture when deciding how to divide the marital home.

Myth 3: Spouses Automatically Retain Ownership Of Everything They Had Before The Marriage In Arlington, Texas

This myth is only partially true—your original assets might remain yours, but their growth during the marriage is not guaranteed to stay with you.

To understand this, let’s use a few examples… 

• Imagine you had a retirement account with $30k in it before you got married. Five years later, you are getting divorced, and your retirement account has grown to $50k.

While the original $30k is considered your separate property, the $20k that accumulated during the marriage is subject to division. So, even though the account is under your name, you don’t automatically retain ownership of everything you had before the marriage – any increase in value that occurred during the marriage can be divided.

• Consider another scenario where you owned a house worth $100k before the marriage. During the marriage, you used community income (the money you and your spouse earned) to renovate the home.

Because community income benefited your separate property, your spouse could have a reimbursement claim against the increased value of the house. So, while it may take some investigation to determine exactly where the funds for those renovations came from, you won’t necessarily retain full ownership of the increased value of the house.

In the end, the wealth you brought into the marriage is likely to remain yours, but any appreciation in value during the marriage may be divided. 

Myth 4: Gifts Or Inheritances Are Protected From Division During A Texas Divorce

This myth is partially true. Gifts and inheritances are considered separate property, which means they are protected during a divorce—if you can prove that the item or asset was indeed a gift or an inheritance.

In Texas, everything is presumed to be community property unless you can provide evidence otherwise. The burden is on the person claiming the gift or inheritance as separate property, and you’ll need to have documentation to prove it.

Documents such as receipts, communications, financial statements, or a will are crucial for showing that something was a gift or inheritance. Without that proof, the item might be considered part of the community estate and subject to division.

Gifts can be tricky, though. Sometimes, it is difficult to prove that something was a gift and not a loan or repayment, which would make it subject to division. Being able to clearly show that the item in question was a gift or inheritance is key to protecting it during the divorce process.

Myth 5: Businesses Are Automatically Protected From Property Division In Texas

It’s easy to assume that a business you’ve built and worked for is automatically protected from division in a divorce, but that’s not the case. The key question is: When did you start the business? If the business was started before the marriage, it may be considered your separate property. You can prove this with formation documents or initial bank statements. However, that doesn’t mean you get to keep the entire value of the business.

Any increase in the business’s value during the marriage is considered marital property and can be divided. These post-marriage gains are not automatically protected.

The situation also depends on the circumstances surrounding the business. For example, if your spouse contributed to the business by working in it, helping it grow, or providing support, they could have a claim to part of the business’s value. Even if you started the business before the marriage, their time and effort would give them strong grounds to seek a portion of the increased value.

Fortunately, there are steps you can take to protect your business, beyond having a prenuptial agreement. One of the most important steps is to keep your business assets and income completely separate from community property. Commingling personal and business funds can make it harder to prove what is separate property, leading to more of your business being subject to division.

This reinforces a key principle in Texas divorce law: If you can’t prove that something is separate property, it is presumed to be community property, and it may not be protected in the event of a divorce.

Still Have Questions? Ready To Get Started? 

For more information on Asset And Property Division In Arlington, Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (817) 532-5666 today.