Division of Property

In all divorce cases – unless the parties can agree on a fair division of their assets and liabilities on their own -- the Court will order a division of the estate of the parties in a manner that the court deems “just and right,” having due regard for the rights of each party and any children of the marriage. This is a vague standard, and does not require that the marital estate be divided equally.  A Court can order an unequal division of the community property when a reasonable basis exists for the court to do so (for example, if one party has been unfaithful during the marriage).

In Texas, the estate of the parties includes only “community property.”  Community property consists of the property, other than separate property, acquired by either spouse during marriage. All property possessed by either spouse during or on dissolution of marriage is first presumed to be community property.

A court has no authority to divide a spouse’s separate property. Separate property is not part of the community estate, is not divided at the time of divorce, and is set aside to the spouse who owns it. A spouse’s separate property consists of:

  • The property owned or claimed by the spouse before marriage (provided the spouse claiming the property as his or her own can fully and accurately trace ownership of the property to a time before the marriage);
  • The property acquired by the spouse during marriage by gift, devise, or descent; and
  • A party’s recovery for personal injuries sustained during the marriage (except for any part of that recovery that represents lost wages suffered during the marriage).