Property Division

Most people have heard that Texas is a "Community Property State" and many incorrectly assume that means each spouse takes 50% of everything at the time of divorce.  Fortunately, or unfortunately (depending on your position) it's just not that simple.

Community Property v. Separate Property

As stated, Texas, like may states in the southwest is a Community Property State.  Courts can only divide Community Property in a divorce.  Contrary to popular belief this is not a blanket "50%" rule.  The actual standard that Courts apply to dividing Community Property is a "just and right" division.

Upon filing for divorce, all property is presumed to be Community Property.  But that presumption can be rebutted by showing that certain property is the Separate Property of one of the spouses.  Separate Property is property that is:

        1) owned by a spouse before the marriage;

        2) given to a spouse specifically as a gift during the marriage (either

              by the other spouse or a third party); or

         3) inherited by a spouse during the marriage.

See Tex. Fam. Code § 3.001 (1)-(2).

Some types of property are easier to prove as Separate Property than other.  Texas Family Law requires that in order to rebut the Community Property presumption, a party must show by "clear and convincing" evidence--- and that "clear and convincing" standard is a high burden to prove.  See Tex. Fam. Code § 3.003(a)-(b).

What determines a "just and right division"?

While there isn't a default "50/50" rule, many Courts do find that dividing the Community Property equaling among the parties to be "just and right". Tex. Fam. Code § 7.001.  However, while the code requires that division must be equitable, Courtsdo not have to divide community property equally (emphasis added). O'Carolan v. Hopper, 414 S.W.3d 288, 311 (Tex. App---Austin 2013, no pet.). there are factors that Courts will consider that affect the overall division of the marital estate.  Some of the factors include:

     1) Waste -- Did one party recklessly use community funds?  Either by making an extravagant purchase or by spending funds on an extramarital affair?  If so, a Court could decide to punish that party when dividing the marital estate. Zorilla v. Wahid, 83 S.W.3d 247,252 (Tex.App---Corpus Christi 2002, no pet.).

     2)Reimbursement -- If one party used their Separate Property funds to benefit the community, a Court might give that party "credit" and award more of the community to compensate the party's loss of Separate Property.  Tex. Fam. Code § 7.007(1)-(2). 

     3) Fault -- Was one party at fault for the divorce?  Was there family violence or adultery?  If so, Courts can the “innocent” party a disproportionate division of the marital estate. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981).

     4) Disparity of Earning Capacity -- If there is a large gap of economic opportunities available to the spouses, a disparity in incomes, or a large difference in earning capabilities, a Court may award a large portion of the community assets to the spouse who will have a harder time making that money back after the divorce. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981).

     5) Health -- The physical health (or lack thereof) of one spouse may have an effect on the overall division of the community estate. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981).

This list is by no means a comprehensive list of the factors that Courts  will consider.  Finding the right divorce attorney to understand your unique situation is important. 

The issues discussed above deal with how a Court might decide the division of property.  However, the vast majority of family law cases are not decided by a Judge.  Instead, they are settled through a negotiation between the parties--through their attorneys--in mediation.

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