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Property Division

This page is intended as a very general overview of the law on property division in a Texas divorce. The statements and information provided on this website are for informational purposes only. This site is not intended to provide legal advice to the reader and NO attorney-client relationship shall be deemed to arise from the receipt of this page. An attorney-client relationship only arises after the attorney and client have signed a written attorney-client agreement, after the attorney has evaluated the background facts provided and has accepted the representation of the client's legal action.

The starting point for understanding property division in a Texas divorce case is understanding the difference between two types of property: community property and separate property.

Separate property consists of:

  1. property owned prior to marriage;
  2. property acquired, at any time, by gift or inheritance;
  3. recoveries for personal injuries sustained by a spouse during marriage (except for loss of earnings); and
  4. property exchanged for above items 1–3.

The Court has no authority to award one spouse's separate property to the other spouse. But, the Family Code includes a provision instructing judges to presume that all property held by either spouse is community property. If either spouse wants to claim that a particular piece of property is his or her separate property, he or she must be prove the separate property claim by “clear and convincing” evidence—a relatively high burden of proof.

Community property, generally, consists of everything owned by a spouse which is not separate property. This is true regardless of which spouse's name is on an account or which spouse's name a piece of property is titled in. The Family Code states that community property is to be divided in a “just and right” manner. As a practical matter, courts usually assume a just and right division is one which apportions community property and debts on a 50/50 basis.

But this is not necessarily so. The Family Code identifies several factors which might lead the court to make a “disproportionate division”, or to deviate from a 50/50 split. The most common reasons for the court to entertain a disproportionate division are probably one spouse or the other being at fault in the breakup of the marriage (adultery or cruelty, for instance) or significant differences in the spouse's income levels (one high income spouse, and a stay-at-home spouse, for instance).

Just as community property needs to be apportioned between the spouses, so does debt. The rules surrounding debts of spouses, and when one spouse can be held responsible for the debts incurred by the other, can be complicated. If you have specific questions about debts incurred by your spouse, you should consult with an experienced family law attorney. Generally, the court has less of a free hand in apportioning debt than property because of the fact that creditors are not parties to the divorce suit. Meaning, a divorce decree might order your spouse to pay a debt in your name, but the creditor isn't bound by that order. If your spouse doesn't pay the debt, the creditor will still look to you to repay it. As a result, the court will, to the extent possible, try to fashion a division of the community property and debts that leaves each party responsible for the debts in his or her name.

If you have questions about the division of you and your spouse's community property or debts, please contact our office to schedule a free consultation.

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