The Law of Property Division in Texas Divorce Proceedings

One of the main issues in a divorce is the division of property and the assignment of debt between the spouses. Who gets which assets and who has to pay which debts is a huge issue no matter the financial worth of the couple. For spouses with substantial assets, property division can entail how great wealth is divided. But for a couple with more modest means, fair property and debt division can be crucial to the financial survival of each spouse after the marriage ends.

Who Decides

Fortunately, divorcing spouses can negotiate a marital settlement agreement in which they decide together how the property and debt will be split between them. Each spouse is helped immensely when he or she retains an experienced family law attorney to help him or her negotiate the marriage settlement, and to give advice about the law and individual rights throughout the process.

It is normally in a couple’s best interest to negotiate an agreement because the alternative is to have the judge assigned to the divorce case making these decisions. The judge does not know the couple personally and may not perceive individual needs. In addition, the judge is bound to follow Texas law in dividing property, and the soon-to-be ex-spouses may be better off with a division that looks different than what the law dictates to the judge.

Community Property

Texas is one of a handful of “community-property states.” Community property is defined under Texas law as “the property, other than separate property, acquired by either spouse during marriage.”

“Separate property” consists of any and all of the following:

  • Property a spouse owns before the marriage
  • Property a spouse gets during the marriage that is a gift or inheritance
  • Legal damages received by a spouse during the marriage for personal injury, except for those meant to replace lost earnings

The basic rule is that the judge will divide community property equally between the divorcing spouses. Separate property is kept by the spouse who owns it as an individual.

Despite the appearance of simplicity in this property division rule, determining whether property is a community asset or a separate asset can be a tricky legal question, especially if it was acquired in another state or in a property exchange. Difficult issues around property valuation can also arise and may require the involvement of experts.

Community Debts

Like property division, a couple that negotiates an agreement can decide how marital debt will be divided. If the judge divides the debt in Texas, he or she is guided by the principal that debts incurred during the marriage are also considered part of the marital “community” to be divided equally upon divorce. However, Texas law concerning the assignment of debt upon divorce is also quite complex.

This article has discussed just the tip of the iceberg of a complicated area of Texas family law. Again, the value of the involvement of a knowledgeable Texas divorce lawyer to advise a divorcing husband or wife in divorce negotiation, and to argue his or her case to the judge if necessary cannot be overemphasized. Contact our office for more information.