Cotten Schmidt

Cotten Schmidt

How Does a Judge Divide Property in a Divorce in Texas?

Family figure with judge gavel,Family law concept

Community property law governs property division in divorces in Texas. Community Property is generally all assets accumulated by both spouses during a marriage except for gifts or inheritances and some other exceptions. Property acquired during a marriage is presumed to be community and it is the burden of a party claiming it is Separate Property to rebut that presumption. [1] Property owned prior to the marriage and gifts and inheritance received during the marriage are Separate Property.[2] Each person’s Separate Property remains wholly with each spouse. Community property however is divided and allocated to each spouse by the court after divorce.

Depending on a number of criteria, the court may split the marital estate in a way that it deems fair and just.[3] When deciding how to divide a marital estate in Texas, judges may take into account a number of variables, such as:

1.        The capabilities and earning potential of the spouses

2.       Possibilities for business

3.       Educational

4.      Physical circumstances.

5.       Relative financial circumstances and commitments

6.      Differences in ages

7.      The size of individual properties

8.      The characteristics of the common property.[4]

If you don’t agree with how the allocation of the property, you do have the opportunity to appeal. It is the responsibility of the party contesting the community estate division to establish, based on the evidence in the record, that the trial court abused its discretion by dividing the community estate in such a way that was unfair and unjust.[5]

It is important to note that property division in Texas can be complex and may require the assistance of an experienced family law attorney. An attorney can help you understand your rights, negotiate a fair settlement, and advocate for your interests in court.

This blog post is intended to be for educational purposes only and does not constitute legal advice. You should always consult with qualified legal counsel to determine applicable legal requirements in a specific fact situation, as every case is unique. This also does not constitute an attorney-client relationship.

[1] Tex. Fam. Code § 3.003.

[2] See Tex. Const. art. 16 § 15; Tex. Fam. Code § 3.001; see also § 363.03.

[3] Remley v. Remley, No. 2-07-044-CV, 2008 Tex. App. LEXIS 7159, at *12 (Tex. App.—Fort Worth Sep. 25, 2008, no pet.)

[4] Id.

[5] In re Marriage of C.A.S., 405 S.W.3d 373, 384 (Tex. App.—Dallas 2013, no pet.)