Yours, Mine, Ours: How Texas Courts Divide Property in a Divorce

December 20, 2017

Texas is a community property state. This means any income or assets acquired throughout the course of the marriage is considered equally owned by both spouses. Likewise, any debts incurred are normally shared. When it comes to divorce though, the division is not so straightforward.

In a community property state like Texas, the judge doesn’t simply divide everything in half. Instead, the judge weighs all the facts to decide what is “just and right” or “equitable.” This division doesn’t simply apply to assets, it also applies to debts. There are, however, some items classified as separate property.

Separate Property

Separate property is any:

  1. Property owned by one spouse before the marriage
  2. Inherited property received by one spouse during the marriage
  3. Gifted property received by one spouse
  4. Money received by one spouse from a personal injury that occurred during the marriage, and 5. Stock dividends and capital gains from the separate property investments of one spouse.

When you divorce, the items classified as your separate property will remain your property alone. They will not be taken from you as part of the divorce settlement.

The Divorce Settlement

Each individual will keep his or her separate property, but the division of community property varies. The judge considers and weighs all the factors to determine a “just and right” resolution. In many cases, the judge orders a 50/50 split. However, if children are involved or if there is a lopsided difference in earning capacities, the split will more likely be 55/45 or 60/40 with the larger percentage going to the caretaker of the children or the individual with the lower earning capacity. These aren’t the only factors in determining the division of community property. Some others include:

  • Fault for the failure of the marriage. If one spouse is at fault for the failure of the marriage, the “innocent” spouse may receive a higher percentage of the community property for not being the cause of the failure of the union. Also, the judge may decide that the “innocent” spouse should receive the benefits he or she would have had from the continuation of the marriage. If adultery is the cause for the divorce, the judge will check to see if any money has been spent on the paramour. Gifts and money given to this individual would count as an imbalanced use of community property, and the judge will make sure that gets balanced out.
  • Difference in earning capacities. If one spouse has the opportunity to earn more income than the other, this may be a factor in property division. This might be the case if one spouse is retired, physically ill, caring for children, or simply working in a high-paying career field.
  • Size of the community and separate properties. When it comes to community property, generally, the larger the estate, the more likely it is that a court will divide it 50/50. The sizes of the community and separate properties of one or both individuals may be compared to each other to help determine an appropriate division ratio.

Divorce can be unpleasant no matter where you live. In Texas, where all your income, assets, and debts are counted as community property, it is especially beneficial to have a lawyer’s help. Attorney Cheryl Alsandor is Board Certified in Family Law by the Texas Board of Legal Specialization. This means that she specializes in family law matters such as divorce and property division. For more information on property division in Texas, click here or call us at 713-661-9783.

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