Splitting up marital property is often one of the most complicated and contentious parts of a divorce in Texas. While state law is relatively clear about what property may be subject to division in a divorce, executing an “equitable” split of that property may require a great deal of negotiation and compromise between parties. However, it is possible to get through this part of divorce without much hassle if you understand how local family courts approach property division in Texas and what steps you can take to ensure a mutually agreeable resolution.

How Does Texas Define “Community Property?”

In the divorce context assets are either community property (which are subject to division) or separate property (not divided). Separate property includes gifts, inheritance, personal injury recoveries, and property owned by either spouse before marriage. Community property is virtually everything else.

Any property acquired by either spouse during the marriage (that is not separate property) is presumed to be community property, according to Texas Family Code §3.002. One of the goals of a divorce proceeding in Texas is to divide community property equitably between the spouses. In a contested divorce, the court has the authority to divide the community property. When divorcing spouses agree, the community property can be divided by agreement.

Community property includes not only real property like houses and cars, but also joint bank accounts, business interests, stocks and bonds, and even retirement savings. If parties to a marriage took on any debts that are in both their names, such as a mortgage or a jointly held credit card, those debts may be subject to division as well.

Conversely, separate property (gifts, inheritances, and property owned by either party before they got married) remains under sole ownership and is not subject to equitable division.

Factors that Can Impact the Division of Assets

Because Texas is a community property state, dividing assets does not need to be all that time-consuming. If both parties agree on a fair division of their marital assets, they can execute on that plan pending a judge’s approval of it. If divorcing spouses cannot come to an agreement on property division, however, the authority to make a binding decision on this matter falls to the judge overseeing their divorce case, who will make a decision based on the couple’s individual circumstances.

It is important to note that “equitable” is not synonymous with “equal.” In fact, it is rare for a judge to settle on a perfect 50/50 split if they are the one deciding who gets which assets. A local judge may consider various factors to determine what constitutes an “equitable” property division in a given case, including but not limited to:

  • Who was at fault for the marriage breaking down, if anyone
  • The future employment prospects of both spouses
  • Whether there was a significant gap in earning power between the spouses
  • Whether one spouse sacrificed their own earnings to support the other’s educational or occupational pursuits
  • The degree to which either spouse will be responsible for childcare after the divorce
  • Whether one or both spouses or their children have any special medical needs

Leaving property division to a judge is more likely to result in an outcome no one is happy with. If is able to agree on the division of their assets, the process is simpler and has better results.

Addressing Property Division in Texas

On the surface, property division in Texas appears straightforward: separate property stays separate, and jointly owned property is split fairly. However, determining what counts as “fair” property distribution can be challenging. If you and your spouse have determined how you want your assets distributed and would like to incorporate that plan into your divorce without bringing attorneys into the mix, use our DIY divorce package to make sure your best interests are protected.