How is property divided in a Texas divorce? P.1

Division of property is among the more important issues couples have to deal with in the divorce process. In some cases, of course, disputes over assets can become quite contentious and it is important for those going through divorce to work with an experienced attorney to protect their rights and advocate for their interests in court.

The general approach to property division used in Texas is known as community property, since most property acquired by either spouse during the marriage is deemed to be owned jointly and will be divided in divorce. Texas law defines separate property as: property owned or claimed by a spouse prior to marriage; property acquired by the spouse during marriage by gift, devise, or descent; and proceeds from personal injury judgments or settlements during the marriage, excepting recovery for loss of earning capacity. Property owned by either spouse at the time of their divorce is presumed to be community property, unless it can be shown otherwise by clear and convincing evidence. 

Although the joint ownership of community property would ordinarily dictate a 50-50 division, division of community property doesn’t always have that outcome. Here in Texas, judges are required by statute to divide assets “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 may end up being a 50-50 division, but it can certainly come out differently, depending on the circumstances.

Judges do have significant discretion regarding the “just and right” division of assets, but there is also a body of case law that should guide their decisions, and it is important to work with an experienced attorney to ensure that one’s rights are protected.

Source: Texas Family Code: Sec. 3.0001-3.419 and Sec. 7.001-7.009

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Heidi L. Heinrich
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