Texas Law Regarding Assets in Divorce

By Beverly Bird

Divorce laws in Texas are complicated by the fact that, technically, it is a community property state, but in reality, judges have discretion in dividing marital assets. In typical community property states, courts divide marital property 50/50 when spouses divorce. In Texas, however, judges can weigh several factors when allotting marital property between spouses, just as they can in equitable distribution states. Texas appellate courts have upheld judges’ decisions to give significantly more than 50 percent of marital property to one spouse.

Segregating Separate Property

The law does not allow Texas courts to distribute a spouse’s separate assets in a divorce. These include any assets that were owned before the marriage, assets acquired during the marriage through gift or inheritance, and personal injury awards or settlements that represent compensation for pain and suffering. Any portion that is compensation for lost wages or income is community property. If your divorce goes to trial and you assert your spouse should not share in the value of some assets because they’re your separate property, you have the burden of proving how they fall into this category.

Distribution of Community Property

It does not matter which spouse holds title to a non-separate asset purchased during the marriage. The date of acquisition determines its status as community property, not title. Texas judges will generally weigh which spouse has the greater need for community property when dividing it. They consider each spouse’s earnings ability, health factors, custody of the children, and how much separate property each spouse will retain post-divorce. Judges assign each factor some weight and after tallying up the results, the spouse scoring highest can receive more than a 50 percent share of community property.

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Any interest or income produced by your separate asset is usually community property. Your spouse will also receive some compensation if she contributes toward the maintenance of your separate asset, increasing its value. Because income is community property, if either spouse’s earnings are used toward the upkeep of a separate asset, the non-owner spouse is usually entitled to a 50 percent “refund” of that money -- her share. For example, if you own a premarital home and make mortgage payments with marital money, your spouse is entitled to a share of the home’s increased equity based on her rightful portion of those payments. She might also be entitled to a share if she contributes labor toward its maintenance. Otherwise, your property's appreciation usually remains your separate asset.

Marital Misconduct

Texas law also allows judges to consider marital misconduct or fault as one of several factors involved in property division. However, the spouse alleging fault must use it as grounds for divorce and prove it in the course of the proceedings. For example, she can’t suddenly announce at the time of trial that she believes she is entitled to more than 50 percent of the community property because her spouse cheated on her. However, the weight given to marital misconduct is only one of the points a judge considers. It generally will not tip the scales of asset division toward one spouse by itself.

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