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Specialty tag(s): Complex Property, Property Division, Divorce

Texas Divorce and Property Rules: What Is Property Division, and How Does it Work in Texas?

Rachel Rizzieri Feist | March 1, 2023

During a divorce, the question of how property will be divided between the spouses is frequently a major concern. Knowing how property division works in a Texas divorce can help you feel more confident about your situation while talking to a divorce attorney. 

What Is Property Division? 

Property division is the process of dividing a couple’s assets during a divorce. How property is divided in Texas is different than in other states because it is one of nine states that uses the community property model while determining how the assets will be divided. 

Types of Property During the Divorce Process 

• Community Property: All assets acquired by either spouse during the marriage are considered community property, meaning that they are equally owned by both spouses, even if the property is only held in one spouse’s name. Community property includes income earned during the marriage, financial accounts, retirement benefits, retirement account contributions, investments, and other assets. All property possessed at the time of divorce is presumed to be community property unless proven otherwise. Community property must be divided between the two spouses in a divorce. 
• Separate Property: Separate property is any property acquired by one spouse prior to the marriage or given to one spouse as a gift, inheritance, or personal injury settlement. Under the Texas Constitution, a Texas Court cannot divest a spouse of his or her separate property. Separate property stays separately owned and is not part of the division of property. 
• Commingled Property: Sometimes during a marriage, one spouse’s separate property becomes entangled with community property. When this happens to the point that it’s hard to parse out where the separate property ends and the community estate begins, the property is “commingled.” In these situations, the commingled property is typically treated as community property. 
• Converted Property: Conversion of property happens when an asset which is separate property of one spouse is converted into community property during the marriage. Unless there’s a written agreement between the spouses establishing that the property was converted to community property, it will usually be considered separate during the divorce. 

Why Is Property Division Important? 

Property division during a divorce is essential for ensuring that both spouses get their fair share of the assets acquired during the marriage. Not all property division cases need to be decided by a judge; if the spouses can work out an agreement on their own, a judge will likely sign off on it. But if no agreement is reached, a judge will make the final decision on how everything is divided. An experienced divorce lawyer can help ensure that the division of your property is done in a way that offers the best possible outcome to protect you and your financial future. 

Factors in Texas Divorce and Property Decisions 

When a judge needs to divide community property, it might be split 50/50, or it might not. Under the laws governing a Texas divorce, property division is required to be “just and right.” In other words, the division of property is required to be “equitable” under the circumstances, which is not always a 50/50 split. The judge may consider other factors besides the value of the community property and give more to one spouse or the other. These factors may include the following:

• Financial situation of each spouse; 
• Age of each spouse; 
• Attorney’s fees; 
• Childcare costs; 
• Education or future employability; 
• Fault in the breakup of the marriage; 
• Fraud by a spouse; 
• Excessive gifts during the marriage; 
• Health of each spouse; 
• Indebtedness and liabilities; 
• Liquidity of assets; 
• Nature of property; 
• Property maintenance costs; 
• Reimbursements; 
• Expected inheritance; 
• Separate property size and nature; and 
• Tax consequences of the division. 

The best way to get an idea of how property division will affect you during your divorce is to speak with a skilled Texas divorce lawyer. An experienced attorney at Goranson Bain Ausley can assist you through this process and help you to feel confident during property division proceedings. 

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Rachel has significant experience in all aspects of family law and passionately advocates for her client’s best interests through negotiation, mediation, or litigation. She recognizes that divorce and other family law issues can have a lasting impact and helps clients create the best-possible “new normal” for their lives moving forward.  

If you have any questions about property division or any other issues regarding any divorce or custody matter, please contact Dallas Family Lawyer Rachel Rizzieri Feist at Goranson Bain Ausley.

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