Texas Divorce: Dividing Property

Learn more about how judges in Texas divide property in a divorce.

By , Attorney

Texas Is a Community Property State

In Texas divorce, one of the most contentious issues is often property division. Common questions that often arise in Texas divorce are "who gets the house?" and "I bought a house before I got married, do I get to keep it?

Along with a handful of other states, Texas is a community property state—meaning all income earned and property acquired by either spouse during the marriage is community property and belongs to both spouses equally.

In Texas, courts must split all marital property equally between divorcing spouses. Likewise, all debts that either spouse incurs during the marriage are considered community debts and belong to both spouses equally. (Tex. Fam. Code Ann. § 3.002.) However, the court may order an unequal division if there are "just and right" reasons. (Tex. Fam. Code Ann. § 7.001.)

Presumption of Community Property

The court begins its evaluation with a presumption that all property held by either spouse during the marriage is community property. (Tex. Fam. Code Ann. § 3.003.) Texas law defines community property as any property acquired or earned during the marriage that isn't separate property. A spouse who wants to keep an asset free from division must prove by clear and convincing evidence that the asset is separate property.

Separate property includes anything that belonged to one spouse before marriage and was kept separate throughout the marriage. It could also include income from separate property, property that was given only to one spouse during the marriage--for example, a gift made by a friend or family member to the husband alone, or an inheritance that the wife received from a relative. (Tex. Fam. Code Ann. § 3.001.)

If one spouse receives money from a lawsuit or settlement because of personal injuries, that money remains the separate property of the injured spouse, unless it includes money to compensate for the loss of earning capacity during marriage. For example, the wife earns $4,000 a month as a sales representative but is injured in a car accident and wins her lawsuit against the other driver. The money she gets from that driver for her injuries would be hers alone unless part of it was to pay her for the month she had to take off of work to heal. The portion of the award that pays her back for those earnings is community property.

The most common types of property divided at divorce are real property like the family home, personal property like jewelry and clothing, and intangible property like income, dividends, and benefits. The court must divide all community property between the spouses when the marriage ends, and all of the marital debts as well. Once a spouse proves that an asset is separate property, then that asset remains in the hands of the original owner; the court cannot award it to the other spouse.

(Find more answers in Texas Community Property FAQ).

Dividing Retirement Accounts

Retirement accounts—such as 401(k) and pension benefits—that either spouse earned or contributed to during the marriage are community property. During the divorce, the court must evaluate each spouse's accounts and determine how much of it belongs to the marital estate. Typically, a spouse's premarital contributions remain separate property, and only the marital portions are subject to property division. Once the court categorizes the accounts into community and separate property, it must value and split the accounts according to the state's community property standards. (Tex. Fam. Code Ann. § 7.003.)

Shifting the Balance

The court has the discretion to distribute the community property in whatever way it believes is fair, but there must be a reasonable basis for a distribution that's not equal. To determine whether the presumption of equal division should be adjusted, the court may consider the following factors:

  • the education, ages, and health of the spouses, as well as their respective earning capacities, skills, and business opportunities
  • whether a spouse is a primary caregiver for the couple's children
  • the amount of separate property each spouse owns, among other facts and circumstances, and
  • whether one spouse was at fault in causing the marriage to fail.

Throughout the process, the divorcing spouses will have opportunities to agree between themselves on how to split the community property. If they decide, for example, to sell the house and split the proceeds, allow the wife to keep all of her retirement benefits, and give the husband the vacation cabin, then they can submit a marital settlement agreement to the court, including these provisions.

Usually, a court will accept a negotiated agreement without further involvement. On the other hand, if the spouses cannot work together, or if there are certain items of property that they cannot agree on, then the court will decide for them.

Spousal Maintenance

Spousal maintenance (alimony) is a payment from one spouse to the other to help the recipient spouse meet "minimum reasonable needs" after divorce. A court's determination of maintenance is separate from the division of community property. (Tex. Fam. Code Ann. § 8.001.)

In Texas, courts are reluctant to make maintenance awards unless one spouse has been convicted of family violence against the other spouse or children. Otherwise, the spouse seeking support must demonstrate any of the following for the court to consider maintenance:

  • the supported spouse is unable to be self-supporting because of a disability
  • the requesting spouse is the custodian of a disabled child, or
  • the marriage lasted 10 years or more, and the requesting spouse lacks the ability to earn sufficient income. (Tex. Fam. Code Ann. § 8.051.)

Even where one of these factors applies, the spouse seeking support must make an effort (and prove it) to secure income and become self-supporting; otherwise, there is a presumption that no maintenance is due. (Tex. Fam. Code Ann. § 8.053.)

Once the spouse overcomes this presumption, the court will consider the following:

  • both spouses' ability to pay support
  • the education and skills of the spouses
  • whether one spouse contributed to the education of the other
  • whether a spouse contributed property or homemaking services to the marriage
  • the length of the marriage
  • the age, earning ability, and health of the recipient spouse, and
  • bad acts by either spouse, such as wasting community property or committing adultery. (Tex. Fam. Code Ann. § 8.052.)

More Information & Sources

Learn more about issues in a Texas divorce in our section dedicated to Texas Divorce & Family Laws.

Texas Family Code Section 7.001 requires a court to make a "just and right" division of property with regard to the rights of the spouses and any children of the marriage. See Texas Family Code Sections 3.001 through 3.003 for more on how to classify separate property. You can read more on how to obtain spousal maintenance in the Texas Family Code Sections 8.001 through 8.053.

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