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State Bar of Texas

Divorce 101: Part B — property, no children

*The following questions and answers apply to property division in cases that involve children as well cases without children.

What does “community property” mean?

Texas is a community property state.  This means that all property and debt acquired by either or both of the spouses during the marriage is presumed to be owned/owed jointly by the spouses.  A spouse’s wages, income earned from separate property of a spouse, and property purchased during the marriage are examples of community property. However, this presumption can be challenged under certain circumstances.

What is separate property?

Separate property is: (1) property acquired by either spouse prior to the marriage, (2) given to a spouse as a gift (before or during the marriage), (3) obtained by a spouse as a result of inheritance, or (4) community property divided or “partitioned” by the spouses into the separate property of one or both of the spouses.  The Texas Constitution prohibits a judge from dividing separate property between the spouses or awarding one spouse’s separate property to the other spouse in the division of the assets and debts upon divorce.  However, the spouses can agree/contract to dispose of their separate property as they wish.

Is property obtained by a spouse or income earned after spouses are separated and/or have filed for divorce still community property?

Yes.  Unlike some states, the separation of the parties or the filing of a divorce does not change the community property presumption of any property acquired during the marriage. 

Does Texas have alimony?

Yes.  In Texas, the word “maintenance” is used instead of the word “alimony”.  It is not an understatement to say that Texas law has been reluctant to accept the idea of one spouse paying a portion of their post-divorce income to their former spouse.  In fact, it has taken many years for the laws in Texas to incorporate and expand the laws regarding financial support of a spouse after a divorce.   Under the Texas Family Code, a requesting spouse must meet certain criteria and there are limitations on the amount and length of post-divorce maintenance.  Recently, the spousal support provisions of the Texas Family Code were expanded and changed for divorces filed on or after September 1, 2011.  Arguably, in theory, the Texas Legislature has made post-divorce maintenance less difficult to qualify for and more applicable to certain situations. It is too early to tell how the changes will be work in the various family courts’ practices.

Is there a presumption/preference for the division of property between spouses?

There is a belief that Texas is a 50/50 property division state.  Actually, the Texas Family Code instructs the family court judges to divide the marital property and debts (or marital estate) in a “just and right division.”  What does that mean?  Often, judges do apply that provision to divide the community property 50/50 between the spouses.  However, many factors are considered by a judge when determining what is a “just and right” division.  Such factors include, but are not limited to, what the nature of the property is to be divided (cash, real estate, stock, retirement, etc.), tax consequences of the division of the property, the income of each spouse, the earning potential of each spouse, the need of a spouse for post-divorce financial support, the separate property of the spouses, wasting of community assets by a spouse, and fault in the breakup of the marriage.

Can I get more than 50% of the community property?

Yes, under the right facts and circumstances.  As discussed above, depending on the factors considered by the court, a larger portion of the assets, debts, or both can be awarded to one spouse.  Adultery, wasting community assets, hiding assets, greater or lesser earning potential of a spouse, the care and needs of the children, and if a spouse will receive post-divorce financial support can all be considered by the court when deciding how to divide the assets and debts. 

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