Proving that Stock is Separate Property in a Divorce

Walters Gilbreath, PLLC

In this article, I want to focus on how stock will become impacted if you file for divorce in Texas. Maybe you got awarded stocks by your company, and you don’t know if your spouse has a claim to them in the divorce. Or, maybe your spouse received them, and you want to know if you can have this property in your divorce. Whatever your situation, this article can answer some of your questions. You can learn about documents involved in your divorce when dividing stock and the stock division process in your divorce.

Community and Separate Property Division in a Texas Divorce

In the state of Texas, whether stocks are considered community property or separate property depends on when they were awarded. But before I get into that, I want to review what community and separate are. Simply put, all of your assets and debt are divided into the community and separate property in a divorce. Community property refers to property that both spouses have a claim to. This means that the property was purchased over the course of their marriage. For example, the marital home is often community property because it was purchased during the marriage. Even if only one spouse purchased the home, the other spouse would still have a claim to the home equity and other factors.

On the other hand, there is separate property. The separate property belongs to only one spouse. Usually, this is because the property got purchased alone before the marriage took place. For example, if you purchased a car the year before you got married, that car will be considered your separate property. Your spouse won’t have a claim to it.

Proving Stock is Your Separate Property

Maybe you were awarded stock by your company. Will your husband/wife have any claim to it in the divorce? The first step to dividing stock in your divorce is to get a full accounting of the stock that you own. Your attorney will likely require you to gather and submit the following information/documentation :

  • A letter from your employer that grants you the restricted stock or restricted stock units. You only need a copy of this document, not the original;
  • The contact information for the company that administered the stock;
  • The account number for the recipient of the stock (that’s you);
  • The company’s restricted stock benefit plan. Again, you only need a copy of this document; and
  • The vesting period for the restricted stock or restricted stock unit. This document should also contain the date that the award was given, some units or shares, and the date of vesting. In many cases, this information will come from a brokerage company that holds the stock. Some larger companies may provide this information themselves. If this is the case, the recipient of the award can view the vesting schedule by logging into their personal benefits account.

Dividing Stock in a Divorce

In Texas, here are the following options for the division of restricted stock or restricted stock units:

  • If the stock was awarded and vested before the marriage, it is considered separate property.
  • If the stock was awarded before the marriage but vested during the marriage, part of it is community property, and part of it is separate property.
  • Finally, if the stock was awarded before the marriage but vested during the divorce, part of it will be community property, and part of it will be separate property.
  • Then, if the stock was awarded and vested during the marriage, all of it is considered community property.
  • If the stock was awarded during the marriage but vested after the divorce, part of it will constitute community property, and part of it is separate property.

Determining the exact amount of community and separate property in your situation will likely require the assistance of an attorney. You should consider contacting one to understand your situation fully.

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