Divorce in Texas consists of determining all matters concerning the best interest of any children involved (discussed in other sections of this site) and the division of property accumulated during the marriage.
Your case is different from any other case. No information given at any source can be taken as a guarantee of outcome. Without consulting with the attorney of your choice, it is not possible to give you answers to your particular set of circumstances. Statements made in documents published on this website are intended to give you an overview of the current law in the State of Texas in the area of family law regarding divorce, property and children. It is not ethical for an attorney to give legal advice without full knowledge of all facts regarding the individual circumstances of your case.
In the context of divorce law in Texas, all property, both real estate and personal property, is characterized as two different types of property: (1) “separate property” and (2) “community property”.
The laws of the State of Texas presume that any property owned at the time of divorce is community property. If either spouse claims that property is separate property, they must prove that the property is separate. The proof of separate property must be “clear and convincing”.
“Separate property” is property either (1) owned or acquired by a spouse before marriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. When the property was acquired and the source of the property that controls, not how it is eventually paid for. For example, if one spouse owned a house or a car before marriage, it will be characterized at the time of divorce as that spouse’s separate property, even if it was paid off in whole or in part during marriage.
A gift includes, for example, any Christmas or birthday gifts from one spouse to another during marriage (even if purchased with community funds). If a gift or inheritance goes to both spouses (such as wedding gifts), then each spouse has an undivided fifty percent separate property interest in that property.
Property which is purchased with separate property funds is also separate property. For example, if husband has $20,000 which is inherited from his parents and uses that $20,000.00 to buy a car, the car is his separate property. A court has no authority to take a spouse’s separate property from him or her at the time of divorce.
“Community property” is any property acquired by either or both spouses during marriage except by gift or inheritance. This includes all property acquired, including property in either party’s name and including property which is part of a spouse’s employee benefits such as retirement plans or stock purchase plans, and possibly any employee stock options given during the marriage which cannot be exercised until a date after the divorce. All property acquired between the date of your filing a divorce and the date your divorce is granted is also community property. The community begins on the date of marriage and ends on the date of divorce.
There are many legal principles that may be applicable to your situation, such as being reimbursed for money spent by one spouse to benefit that spouse’s separate estate. It is important to talk with an attorney who specializes in Family Law to determine if you have any claims that need to be pursued during your divorce.
In Texas, earnings from separate property are community property. For example, if husband has $5,000 in a bank account at the date of marriage, the $5,000 remains his separate property, but all interest earned on the $5,000 becomes community property.
Unlike separate property, a court has the authority to divide community property in any manner that it deems to be “just and right”, meaning that a spouse can be given more than half of the community property. Some of the factors that a court can consider in giving one spouse more than half of the property are:
- fault in the breakup of the marriage (usually cruelty or adultery);
- benefits the innocent spouse may have derived from the continuation of the marriage;
- disparity of earning power of the spouses and their ability to support themselves;
- health of the spouses;
- the spouse to whom conservatorship of the child is granted;
- needs of the child of the marriage;
- education and future employability of the spouses;
- community indebtedness and liabilities;
- tax consequences of the division of property;
- ages of the spouses;
- earning power, business opportunities, capacities, and abilities of the spouses;
- need for future support;
- wasting of community assets by the spouses;
- attorney’s fees to be paid; and
- other equitable reasons.
This list is not all inclusive. There are other factors. Except in extreme circumstances, a 60/40 split of property or a 55/45 split is most common. Talk to your attorney of choice who specializes in family law to determine if you or your spouse qualifies to receive a greater portion of the property than 50%. Your case is different than any other case.