Division of Property

Division of Real Estate in Divorce

Divorce is a difficult time for anyone, regardless of the circumstances. Property division and coming to an agreement during a divorce can be a difficult process, even with the most skilled mediators. Real estate that is acquired during a marriage automatically becomes the property of the other spouse due to Texas’ community property rules, and real estate is one type of property which cannot be easily divided 50-50. An experienced family law attorney can help walk you through the law and determine your best course of action.

Real Estate During a Divorce

The division of real estate is governed by state law, and Texas, as a community property state, has strict regulations involving the division of real estate. Under community property states, all assets and property acquired during the marriage are the property of both spouses. However, any property acquired prior to the marriage remains that spouse’s separate property, unless a unique situation exists. Complications arise when the real estate is situated in a different state that does not follow community property rules, but a family law attorney can assist you in determining the best way to divide property.

Division of Real Estate

Parties are typically able to come to an agreement regarding the division of property where one spouse keeps the real estate and pays a percentage of the ownership to the other spouse. If the spouses sign a written agreement involving the exchange of compensation for the exchange of property, the real estate will become that spouse’s separate property. It is important that the value of the real estate is accurately given, and an appraiser may be brought in to ensure the property is given the appropriate value.

If you and your spouse cannot come to an agreement regarding the division of real estate, the divorce proceeding will go to court and a judge will make the decision. Since community property is owned 50-50, the judge will often recommend a sale of the property and the two parties will then split the assets. In this situation, you additionally must be aware of any potential tax consequences on the sale of the real estate.

It is also important to keep in mind any pre-marital agreements you may have signed prior to the marriage which may dictate the terms of property and real estate division.

How is property divided in Texas?

The starting point is that the court presumes that all the property of the marriage is community property, and if you have separate property you have to prove it by tracing it with “clear and convincing evidence.” The court divides the property in a “just and right manner.” What does this mean? In most cases, it means a 50/50 split. In other cases, factors such as unequal earning power and fault in the marital relationship can affect the division of property. There is a reported case where a 90/10% split was deemed a just and right division. This case was upheld at the appellate level.

Ned Gill III | Bellaire, Texas Family Law Attorney

Dividing real estate can be a confusing part of divorce, but an experienced family law attorney can assist you in valuation and real estate division. Attorney Ned Gill has years of experience in handling divorce cases throughout the Bellaire area and will assist you in creating the division plan which works for you.