Texas considers any assets acquired by a married couple to be community property, meaning both parties own it. However, that doesn’t necessarily mean couples will split marital assets equally when they get divorced. Texas law provides that the division of property is fair and equitable, according to what a judge considers to be “just and right.”

Factors determining a “just and right” split

Assets include wages, real estate, personal property, pensions, employee benefits and others. However, not everything spouses own is deemed community property. These can include items owned before the marriage, assets such as inheritance or gifts received by just one spouse and some personal injury awards. Texas courts apply the “just and right” rule by considering:

  • Reasons for the divorce and who was at fault for the breakup
  • Length of the marriage
  • Who will have custody of children
  • The difference in earning ability for each spouse
  • The health of each spouse
  • Prospects for future employment
  • Need for future support

The Supreme Court of Texas allows courts to consider other factors, such as each spouse’s abilities and capacities, potential benefits that the spouse not at fault would have received if the marriage had continued as well as education, business opportunities and the size of each estate.

When do community property rules not apply?

While the state’s community property rules are the default mechanism to distribute marital property, couples may divide their assets on their own terms, through valid prenuptial or post-nuptial agreements.

However, these contracts may not be enforced in Texas if one or both spouses do not voluntarily sign the document, or if it is seen as grossly unfair toward one spouse. If you decide to contest these agreements, help from an experienced family law attorney can be beneficial.

Keeping separate property separate

Texas does not divide property owned by one spouse. However, the spouse claiming sole ownership must be able to provide “clear and convincing evidence” to the court. If they are unable to do so, it will typically be considered community property.

In some cases, even when separate ownership is proven, the non-owning spouse may be reimbursed for enhancements made to the other party’s property. In some cases, courts will alter the community property outcome for those entitled to reimbursement.

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