icon-division-marital-propertyDuring a Texas divorce, one major issue to deal with is the division of the spouses’ assets and debts. There are several steps that must occur during such a division. First, the assets must be identified. This is typically done by completing a sworn inventory and appraisal which lists all of the assets and debts owned. Once the property is identified, the next step is to characterize the property. Before going into characterizing the property, it is crucial to understand that Texas is one of a handful of states that has “community” property.

Community property is defined in the negative and includes all property acquired during marriage except for property acquired by gift or inheritance. Separate property is property that is owned prior to marriage, or property that was acquired during the marriage by gift or inheritance. The distinction between community property and separate property is critical because the court divides the community property between the parties but cannot do so for separate property.

Once all of the assets have been identified and characterized, the court can make its division. The effect of the division of the property is to give each spouse with the exclusive right of possession of the specific property awarded to them. In Texas, all community assets and liabilities are subject to a just and right division. The just and right division is based on the facts of each case and is not necessarily a 50/50 split. In fact, disproportionate divisions are relatively common. Whether a court’s division of the community assets and liabilities is a just and right one is determined by the net value of assets each party receives – not the quantity of the assets.

As stated above, the court considers many factors in making the just and right division of the community assets and liabilities. Even though Texas does not require fault to get a divorce, courts consider fault in the breakup of the marriage when making the division. The other general factors that a court considers in making its division are:

  • The parties’ abilities to support themselves;
  • The financial costs incurred by a party while the divorce is pending; and
  • Length of the marriage.

When making the division the court does not necessarily have to split each asset. What this means is that if one party gets the house, the other could be awarded an interest of equal value in a retirement account.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.