If you are considering divorce in Texas, you should know that Texas is one of a handful of community property states in the U.S.
In a community property state, when a married couple decides to get divorced, the court assumes that all property you acquired during your marriage is owned jointly unless it falls into a few specific categories, and that property is then divided equally between the spouses.
In other words, the community property is valued, and it is split 50-50 between the parties.
This is a much different approach than states that rely on a theory of property division in divorce known as “equitable distribution,” where the property is divided in a way that is fair to both parties.
One of the best ways to ensure that property you do not want to be divided remains in your hands during and after the divorce is by creating a Texas partition agreement. This is a document through which the parties agree that particular property will be “separate property” and will not be divided.
What is a Partition or Exchange Agreement?
Under the Texas Family Code, at any point in time, the spouses may exchange or partition their community property however they want. Property transferred to a spouse by this type of agreement becomes that spouse’s separate property. The exchange or partition of property may also include that future earnings arising from the transferred property will be the separate property of the owning spouse.
In other words, spouses can agree that particular property will be classified as “separate” rather than community property. Accordingly, in the event of divorce, that separate property will not be divided.
The partition or exchange agreement is how property that otherwise would be considered community property can be converted to the property solely of one spouse. Further, any money that the spouse earns from that property is owned solely by that individual spouse.
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Ensuring That Your Partition or Exchange Agreement is Enforceable
In order to be enforceable, the following must be true of the partition or exchange agreement:
- In writing;
- Both parties voluntarily signed it; and
- It was created during the marriage.
If one party wants to dispute a partition or exchange agreement, or argue that it is unenforceable, that party typically will need to show one of the following:
- One of the parties did not sign voluntarily; or
- Agreement was unconscionable because one of the parties was not offered a reasonable disclosure of the property of the other party; the party in opposition to enforcement didn’t voluntarily waive his or her right to the disclosure of property; and that same party did not have adequate knowledge of the property of the other party.
Contact a Texas Divorce Lawyer
The process of partitioning property can be complicated, but it can also be essential if you are planning to divorce. Partition agreements can allow one spouse to retain property that has economic value, sentimental value, or both.
However, ensuring that your partition or exchange agreement is enforceable can be difficult without the help of an experienced Austin divorce lawyer. An advocate at our firm can work with you on your case. Contact the Law Office of Ben Carrasco PLLC for more information online or by calling (512)-320-9126.