Property division for Texas couples going through a divorce

Texas is a community property state, and, as such, all property acquired during the marriage, which is defined as "marital property," is divided equally between both spouses as a matter of law. That said, Texas is a unique type of community property state.

In Texas, the judiciary has discretion when it comes to dividing up property; a judge can divide marital property in a "just and right" fashion, which means it can be divided in a manner that the judge sees as optimal.

Difference between marital and separate property

Generally speaking, marital property is property acquired during the marriage, while property acquired before the marriage by either spouse is considered separate property.

Separate property is not subject to division. Some common forms of separate property are an asset acquired before marriage, an item attained as a gift or an item received through inheritance. Other items can be deemed separate property as well.

Under Texas law, the judge will assume that all assets owned at the time of the divorce are community property unless a party identifies and proves that they possess an item or items that fall under the rubric of separate property. It is important for divorcing individuals to remember this legal assumption and to be proactive if they want certain property to be deemed separate, and, therefore, exempt from division.

How does a Texas court divide marital property?

A judge will divide property in a "just and right" fashion based upon various considerations. These considerations include:

  • Whether the marriage produced children
  • Who has the primary responsibility for raising the children
  • The age or health differences between the parties
  • The needs of either spouse or the children after the divorce
  • Any disparity in earning power between the parties
  • Any differences in parties' educational backgrounds

The length of the marriage and the conduct of the parties may also provide a judge with a basis for distributing marital property, but, typically, these factors alone are not enough to do so.

Consult a Texas family law attorney for help

Texas law relating to property division in the context of divorce is complex and very much beholden to the whims of the adjudicating judges. Individuals going through a divorce would be wise to seek the counsel of an experienced family law attorney. An attorney can provide detailed advice about property division under Texas law and advocate for a client throughout this process.