Mediation & Property Division in a Texas Divorce

Preparing for Property Division in a Texas Divorce

Dividing property and debts in a Texas divorce depends on several factors. At the very least, you need to identify all the property owned by either spouse and property owned by both spouses, characterize each identifiable property and agree to the value of each property.

Each party can develop an inventory that identifies all the property that they know about and assign a value to each property listed. Developing a composite inventory from both parties’ inventories becomes helpful in identifying value differences later.

Before dividing property, the characterization of the property must be ascertained as community property to be divided or separate property to be confirmed to the separate property-owning spouse.

Separate property is property owned before the marriage or property acquired during the marriage by gift bequeath or device. If the spouses do not agree on which property is separate property, then separate property must be proven by clear and convincing evidence.

In the inventory, listing the characterization of each property is helpful in identifying separate property that must be proven by clear and convincing evidence later.

Debts

Debts associated with secured transactions typically will follow the property that secured by the debt. The loan on a house or car will usually be assigned to the party acquiring the house or car. Secured debt that incumbers both parties can be ordered refinanced so that the spouse not assigned the property will not be left owing on the property assigned to the other spouse.

Other debt, like credit card debt, can be assigned to a spouse in a just and right manner just like assets that are not incumbered by debt.

IT IS NOTABLE, that no matter how debt is assigned in a final decree of divorce in Texas, the decree is not enforceable against the debtor. Therefore, even if a debt is assigned against one spouse, if the original debt is in both spouse’s names, then the creditor may seek payment relief against both spouses.

Mediation and Property Division

Mediation presents a unique solution to separate property. In mediation, the character of the evidence does not matter. The spouses may agree to any division of property. A Court has no discretion to divide separate property and must assign the separate property to a spouse if it is proven by clear and convincing evidence.

Mediation is one of the most powerful tools available to you during a Texas divorce — and it often leads to better outcomes than leaving decisions up to a judge.

Unlike a courtroom, mediation gives you and your spouse the freedom to agree to virtually any division of property, even arrangements a court would not have the authority to order on its own. If there is a dispute over whether certain property is separate or community, mediation allows both of you to find a resolution that works — without the expense and unpredictability of a trial. A court, by contrast, is bound by strict rules: it must confirm separate property to its owner if proven by clear and convincing evidence, and must divide community property in a “just and right” manner, which may not always align with what feels fair to you personally.

Most Texas divorces go through mediation before ever reaching a courtroom, and the majority are resolved there. The process is designed to be low-conflict — usually you and your attorney will be in a private room, your spouse and their attorney in another, and a neutral, trained mediator will work between both sides. 


The mediator’s job is to get your signature. You can expect the mediator to challenge you at some point in mediation in order to keep the parties “moving” towards settlement. Expect to be put on the spot and pressured by the mediator. I have heard many mediators tell the parties at the start of a mediation that

“You can tell that a mediated settlement agreement is a good agreement when both parties signed the agreement and both parties are unhappy with some part of the final settlement that they signed”.