Property Division Including Complex Estates
Texas is a “community property” state, which means all property acquired by a married couple during the course of their marriage belongs to both of them. Property owned in either spouse’s name or jointly is presumed to be community property unless one spouse claims and proves that certain assets are his or her separate property. Texas law requires that marital property be divided in a manner that is “just and right”, but court’s have much discretion in determining what constitutes a fair division of assets and debts. Nancy Whittemore has more than 21 years of experience in managing cases with significant marital property to divide, including litigation of complex marital estates. After the all marital property is identified, characterized and valued, the spouses can either agree on division or the court will make a property division order.
Property Classified as Separate Property
Certain property is characterized as separate property and not part of the marital estate. However, a spouse claiming that assets as separate, and not subject to division in the divorce, must prove by a preponderance of evidence that the property is his or her separate property. Situations that create separate property include:
- Property owned by a party prior to the marriage
- Inheritances
- Personal injury awards for pain and suffering
- Gifts
- Family heirlooms
Determining the Value of Community Property
Property identified as marital assets must be valued, which involves determining the current fair market value of each asset. In a complex estate, there may be assets that are more difficult to value, such as a family business or closely-held corporation, antiques, art work, stock grants, stock options, pensions, and real estate. Other assets more easily valued include retirement plans, stocks, bonds, and more. In certain circumstances, it will be effective to seek the expert opinion of the following:
- Appraisers. Assets such as real estate, antiques, artwork and jewelry may need to be valued by an appraiser who specializes in determining the value of these types of assets.
- Forensic accountants. In many cases, one spouse has managed the marital assets and the other spouse may be uncertain of the extent and value of assets. A forensic accountant can assist in locating assets, so they can then be appraised.
Factors Considered by the Court in Dividing Property
Texas community property law states that each spouse is an equal owner of marital community property, the court is given discretion to consider many factors when dividing property based on what it finds is “just and right.” Factors considered by the court include:
- The length of the marriage
- The reasons for divorce and whether one party was at fault
- Income and earning power disparity between the parties
- The needs of each party and the children after the divorce
- Whether one party wasted marital assets or committed fraud on the marital estate
The court may also consider several other relevant factors.
For a free 20-minute consultation, Contact the Whittemore Law Firm at 832-215-3706
Whittemore Law Firm is dedicated to helping clients navigate difficult family law and divorce issues. Whittemore Law Firm serves clients in The Woodlands, Conroe, Montgomery County, Houston, Harris County, and throughout the surrounding area. If you need help, contact Whittemore Law Firm now and benefit from more than 21 years of family law experience so we can help make sure you get a fair resolution.
