Divorcing couples are usually aware of Texas’ community property laws, in which courts aim for a “just and right division” of the couple’s assets. But what they may not realize is that “just and right” doesn’t always indicate a strict 50/50 split.
Much will depend on the court’s decisions about fairness and financial security and how they relate to the individuals involved in the divorce. The judge will start with 50/50 but may adjust the percentages based on the circumstances of the marriage.
Here, we’ll break down how property division works in Texas and how it affects the division of assets for divorcing couples.
What Is “Community Property” In Texas?
Community property in a Texas divorce means that all assets acquired during the marriage are considered “jointly owned” by both parties, with some exceptions. This can include income, real property (such as homes), retirement accounts, vehicles, artwork, furniture, and other assets. However, liabilities such as mortgages, other loans, credit cards, and other debts are also considered community property under Texas divorce laws.
Separate property is property owned exclusively by one party during the marriage, such as gifts, inheritances, and property owned before the date of the marriage. Some personal injury settlements may also be separate property.
Is Texas a 50/50 Divorce State?
Strictly speaking, no, Texas does not require a 50/50 split. The legal standard is the “just and right” division of a couple’s assets based on fairness, not equality or a percentage.
The outcome will vary depending on a couple’s circumstances. Under the Texas Family Code Chapter 7, factors that impact property division can include:
- The earning capacity and education of each spouse
- Health and physical conditions of one or both spouses
- Primary custody of any minor children
- Fault in the breakup of the marriage, such as cruelty, abuse, or adultery
- The size of each spouse’s separate estate
Should one party pass away intestate (without a will or estate plan), these same community property laws will favor the surviving spouse.
- If the decedent had children with their surviving spouse, that spouse inherits all the community property.
- If the decedent had children from a previous relationship, the surviving spouse keeps half of the community property, while the other half passes to those children.
Each case is different, and the court will examine all aspects of the marital estate.
Factors Courts Consider in Property Division
The courts look at variables in how property is divided in a Texas divorce, including:
- Fault in the breakup of the marriage, such as adultery, cruelty, or abandonment
- Each spouse’s earning capacity and financial situation
- Education, job skills, and employability
- Health and age of each spouse
- Custody of any children and the future needs of those children, if applicable
- The size of each party’s separate property estates, such as solely owned businesses, real estate, and other assets inherited or acquired before marriage
- Debts and liabilities, including mortgages, student loans, and credit card debt.
This helps the court to determine what would be just and fair for both parties. For instance, if one party stopped working to care for children, returning to work might result in a lower income than before. If one party needed to upgrade skills to find better employment to support themselves and their children, the court could order temporary spousal support for a defined period to allow the lower-earning spouse to get job training, education, or other skills to become financially self-sufficient.
What Counts as Separate Property?
This is any property that is not subject to division by the courts and not part of the marital estate under the Texas Family Code, including:
- Assets owned before marriage
- Gifts and inheritances
- Personal injury settlements, with exceptions for lost wages and pain and suffering during the marriage
- Capital gains and stock dividends are derived directly from the separate property investments of one party.
The court presumes that all assets are community property, no matter whose name is on the title, deed, account, etc. Therefore, one party must prove that something is separate property for it to be separate and undivided with clear and convincing evidence. Bank statements, titles, deeds, or wills and trust documents that prove an inheritance are all evidence showing an asset is separate.
Additionally, any assets intended to be separate must be kept separate and not commingled with marital assets. For instance, money received as an inheritance or a lawsuit settlement must be kept in a separate account. If it’s deposited into a joint account with joint marital funds, it becomes marital property subject to division. Adding the other spouse’s name to an asset also makes it marital by a process called transmutation.
Can Spouses Agree on Their Own Property Division?
Many divorces are settled outside of court through mediation. While the court must still approve any agreements between spouses, mediation gives both parties a faster resolution and more control over the process. It also helps ease conflict, which can make a difficult situation even harder on everyone.
Mediation is a common path in Tarrant County. Some Texas courts require couples to at least attempt mediation before their court date.
Why Legal Guidance Matters in Texas Divorce
If there are retirement account debts and businesses in a marital estate, property division can quickly become complicated. Mistakes can have long-term financial consequences for both parties. Even in an amicable divorce, any incorrectly drafted documents or missing legal language, such as an incomplete legal description of real estate or an inadequate division of retirement accounts, can lead to the court rejecting the agreement you made or depriving you of what you should have.
A Fort Worth attorney with knowledge of Tarrant County courts can help protect your assets and negotiate fair outcomes for you and your children.
Let The Law Office of Wendy L. Hart Help With Property Division
Understanding your rights in a divorce is the first step towards having peace of mind. Every divorce is unique, and Texas’s community property laws can be complex. A Fort Worth divorce attorney can help you understand your rights and what you need to go forward.
The Law Office of Wendy L. Hart can offer personalized advice during a trying time. Call us today at (817) 670-3110 or contact us online to schedule your confidential consultation. We’ll help you understand your legal options and pursue the path that best supports your child’s stability, identity, and future.
