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Dividing Community Property After Your Divorce

Family, Divorce & Children

This article discusses dividing community property after divorce.

Why might there be community property left undivided after a divorce?

It is usually best for spouses to divide all their community property in the Final Decree of Divorce that is signed at the end of the divorce case. In some cases, though, that might not be possible. For example, sometimes one spouse has property that the other spouse does not know about before the divorce is final. Sometimes the Texas court does not have jurisdiction to divide certain community property at the time of the divorce, but gets jurisdiction later. Once in a while, spouses may agree to remain co-owners of certain property even after their divorce is final. 

 

 

My divorce is final, but it did not cover all the community property. Can we divide the property now?

Maybe. After a divorce is final, the former spouses become joint owners of any undivided community property. Just as any other joint owners of any property, they may “partition,” or divide the property and each take their separate shares of it. This can often be done without going back to court, if both parties agree to how to divide the property.

If former spouses cannot agree on what to do with undivided community property, either former spouse may file a “Suit for Postdissolution Partition” under the Family Code. See Texas Family Code 9.201. If the divorce was done in a Texas court, this suit is filed in the same court that signed the decree. In a post-divorce partition under the Family Code, the court can consider things like fault and the parties’ different needs in deciding how much of the property to award to each former spouse.

Former spouses can also ask a court to partition their undivided property under the Property Code. See Texas Property Code chapter 23. Sometimes partition under the Property Code is still an option even if the former spouse has waited too long to ask for partition under the Family Code. Generally, in this kind of partition, the court will divide the property equally between the parties, without looking at fault or the parties’ needs. 

 

 

 

Is there a deadline to file a suit to partition undivided community property?

Yes. If your former spouse tells you clearly that he or she believes that you have no rights to the undivided community property, it is important to check with a lawyer right away to find out how long you have to file suit.

For partition cases under the Family Code, you have two years to file, starting from the date your former spouse denies your rights to the property. Under the Property Code, the deadline is four years from the date your former spouse denies your rights to the property. (It may be more than four years if the property involved is real estate.) 

Those deadlines can be extended in some limited circumstances, where no Texas court has jurisdiction over the property or the parties.

 

 

What kinds of property can be divided after a divorce?

Any property that existed at the time of the divorce that was not addressed in the divorce decree can be divided after divorce through a suit to partition. However, you cannot use a post-divorce partition suit to dispute and change the property division that was actually included in the divorce decree.

Types of property that can be divided after a divorce include, but are not limited to:

  • Real property;

  • Vehicles and other personal property; 

  • Income received during the marriage, including a bonus or commission based on work completed during the marriage; and

  • Tax refunds issued from an amended tax return.

 

I just learned my ex-spouse has a retirement account. I think I was entitled to some of it. Can I get a portion of it?

Maybe. It depends on whether contributions to the account were made while you and your former spouse were still married. Retirement funds accrued during the marriage are considered marital property and you may be entitled to a portion of those funds. You would start by filing a suit for post dissolution partition of the retirement account (see above). If the court decides to award you a part of the retirement account, you will need the court to sign two different orders. The first is the final order to divide the property and close the partition case. The second order is called a Qualified Domestic Relations Order (or “QDRO” for short). The QDRO is the document that the retirement plan manager needs in order to be allowed to move money out of your former spouse’s account to send to you. Unfortunately, there is not a standard QDRO form that works equally for every different type of retirement account, so it is best to talk to a lawyer if you might need a QDRO.

Use TexasLawHelp's Legal Help Finder tool to locate a lawyer.

 

See also Dividing Retirement Benefits Upon Divorce.

 

 

 

 

I think my spouse was hiding assets. How do I find out if my spouse has property that was not divided in our divorce?

You have a few different options. One option is to conduct a search on your own, through resources such as county appraisal district records and county property tax records. Another option is to hire an attorney to help you conduct discovery as part of a post-dissolution partition suit. Through this process, you may be able to access your former spouse’s tax returns and other relevant documents and information.

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