LEGAL RESOURCES
Is Texas a 50/50 Divorce State?
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The Short Answer Is No
One of the most common misconceptions about divorce in Texas is that every asset is automatically divided equally between the spouses.
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Texas law does not require a 50/50 division of property.
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Texas is a community property state, but community property does not mean that every divorce ends with each spouse receiving exactly one-half of the marital estate. Instead, the trial court divides the community estate in a manner that the court considers “just and right.” See Tex. Fam. Code § 7.001.
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A just and right division may be equal in some cases, but it may also be substantially unequal depending upon the evidence.
What Is Community Property?
Before dividing property, the court must determine what property belongs to the community estate.
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Under Texas Family Code § 3.002, community property consists of property, other than separate property, acquired by either spouse during the marriage.
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Texas law also creates a strong presumption that property possessed during or at the dissolution of the marriage is community property. Texas Family Code § 3.003 provides that a spouse claiming property is separate property must prove that claim by clear and convincing evidence.
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Only after the court determines which assets are community property can it decide how those assets should be divided.
The Court Divides Community Property—Not Separate Property
Many people assume that everything owned by either spouse is subject to division.
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That is incorrect.
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Property owned before marriage, property acquired by gift or inheritance during the marriage, and certain personal injury recoveries are generally classified as separate property under Texas Family Code § 3.001.
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A Texas divorce court generally cannot award one spouse’s separate property to the other spouse. The Texas Supreme Court made this clear in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977), holding that a trial court lacks authority to divest a spouse of separate real property.
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Accordingly, the court’s authority generally extends only to the community estate.
What Does “Just and Right” Mean?
The phrase “just and right” gives the trial court considerable discretion.
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The Texas Supreme Court explained in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981), that trial courts may consider numerous equitable factors when dividing community property.
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Those factors may include:
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The earning capacities of the spouses.
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Education and future employability.
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The size of each spouse’s separate estate.
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Fault in the breakup of the marriage.
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The spouses’ physical condition and health.
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Future financial needs.
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Fraud on the community.
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Reimbursement claims.
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The nature of the property being divided.
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Any other equitable circumstances supported by the evidence.
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No single factor determines the outcome, and every case is decided according to its unique facts.
A 50/50 Division May Still Be Appropriate
Although Texas law does not require an equal division, many divorces result in property being divided approximately equally.
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For example, if both spouses have similar earning capacity, similar separate estates, no significant fault issues, and comparable future financial needs, an equal division may be entirely appropriate.
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The important point is that the law does not require an equal result simply because the marriage is ending.
Some Cases Result in a Disproportionate Division
In other cases, one spouse may receive a larger share of the community estate.
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For example, a court may award a disproportionate division when there is significant evidence of adultery, fraud on the community, wasting of marital assets, substantial differences in earning capacity, disability, unequal separate estates, or other equitable factors recognized by Texas law.
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A disproportionate division is not intended to punish one spouse. Instead, it reflects the trial court’s responsibility to reach a division that is fair under the particular circumstances of the case.
Debt Is Also Divided
Property division includes both assets and liabilities.
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The court allocates responsibility for mortgages, vehicle loans, credit cards, tax liabilities, business debt, and other obligations when dividing the community estate.
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It is important to remember, however, that while the divorce decree determines responsibility between the spouses, it generally cannot change the contractual rights of creditors. If both spouses signed a loan agreement, the lender may still pursue either spouse regardless of how the debt is allocated in the divorce decree.
Mediation Often Allows the Parties to Control the Outcome
Although a judge may divide the property after trial, the majority of Texas divorce cases settle through mediation.
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Mediation allows the parties to negotiate a property division tailored to their family’s specific circumstances instead of leaving those decisions to the court.
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When the parties reach an agreement, they often have greater flexibility than a judge would have after a contested trial.
Every Divorce
Is Different
There is no formula that determines how property will be divided in every Texas divorce.
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Some community estates consist primarily of a house and retirement accounts. Others involve businesses, investment portfolios, executive compensation, inheritances, reimbursement claims, mineral interests, or substantial separate property.
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The complexity of the estate often determines how much financial investigation, discovery, and expert testimony will be required before a fair division can be achieved.
Fergus & Tomanka Helps Clients Protect Their Financial Future
Whether a community estate should be divided equally or disproportionately depends upon the facts of each case and the evidence presented to the court. Understanding the distinction between community property, separate property, and the “just and right” standard is essential to protecting your financial interests during a divorce.
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At Fergus & Tomanka, we represent clients throughout Central Texas in divorce cases involving complex property division, business valuation, retirement accounts, reimbursement claims, tracing, separate property disputes, and high-value marital estates. We work to ensure that every asset is properly characterized and that the community estate is divided fairly under Texas law.
Call (512) 291-6952 to setup a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.