Is my spouse entitled to half of my saving and retirement if I don’t work?

UPDATED: May 9, 2019

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Is my spouse entitled to half of my saving and retirement if I don’t work?

We’ve been married for 21 years. I am retired from the military. There is a home. I have a savings account, retirement and disability.

Asked on May 9, 2019 under Family Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Texas is a community property state.  The means that anything acquired or obtained during the marriage is subject to division.  Some people think this means that everything has to be divided 50/50.  This is the not the case.  Texas uses a standard called "fair and equitable."  The court's will strive for 50/50'ish division, but it may not be exactly 50/50.  The court's will and can deviate if there is a reason to do so, for example:  (1) if one spouse gave thousands of dollars to a boyfriend/girlfriend or (2) one spouse was physically abusive to the other spouse or (3) one spouse has an inability to support themselves. (These are just 3 examples).  If you cannot work, then this can be taking into consideration by the judge in dividing the estate.
All community property goes into the pot and then it's divided.  Sometimes, the court will order one asset to go to one party (like a house), and then another asset (like a retirement account) to the other spouse.  As long as the values are close to equal, then the court can do this because it's resulting in a fair and equitable division of the estate.  The courts are not required to go divide each asset in half.
If an asset is not community property, then it does not go into the pot to be divided.  That asset stays with the spouse who owns that asset.  If you earned your retirement before you and your wife married, then you will get to keep that asset.  If part of your retirement was earned before marriage, then only the part that was acquired during marriage will be subject to division.  (The same rules would apply to your house and any other accounts/assets).
The disability claim may or may not be subject to division.  Depending on how it's paid, why it's paid, and how the disability is structured, it may be separate or community property.  Do not assume that your disability is automatically community property.  You will need to take your disability documents to a family law attorney so they can tell you if they are or are not subject to division.  I usually suggest getting at least two opinions on this issue.  Find a family law attorney who actually knows disability rules to help you keep this asset.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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