Overview
Texas is a community property state. That means:
- Community property is generally anything either spouse acquired from the date of marriage until the date of divorce, except what qualifies as separate property.
- Separate property belongs to only one spouse and is not subject to division by the court.
By statute and case law, separate property includes:
- Property owned before marriage.
- Property acquired by gift or inheritance, even during the marriage.
- Certain personal‑injury recoveries (for example, pain and suffering), but not lost wages or medical bills reimbursing the community.
Everything else is presumed to be community.
The community presumption and why proof matters
Texas law begins with the community presumption: if you own an asset at the time of divorce, it is presumed to be community property. To claim something as separate, the spouse who wants that classification must rebut the presumption with “clear and convincing” evidence.
That usually requires:
- Documents (deeds, account statements, gift letters, probate records).
- Tracing, especially for money: showing that the funds in an account or used to buy an asset came from a separate source and stayed separate.
- Testimony that makes sense and fits the paper trail.
If you can’t prove separate property to that higher standard, a judge will treat it as community property and can divide it.
How community property is divided: “just and right”
Texas does not require a 50/50 split. The Family Code says the court must divide community property in a manner that is “just and right, having due regard for the rights of each party and any children of the marriage.”
In practice, that means the judge looks at factors such as:
- Disparity in earning power and future earning capacity.
- Differences in health, age, or education.
- Who will have primary conservatorship of the children.
- Fault in the breakup of the marriage (adultery, cruelty, waste of community assets).
- Size of each spouse’s separate estate.
- Any wasting, hiding, or misusing of community funds.
A typical division might be approximately 50/50 in a short, low‑conflict marriage with similar incomes. But a long marriage where one spouse has a much higher income, or evidence of fault or waste, can justify a disproportionate award (for example, 55/45, 60/40, or even more).
Common problem areas in characterization
Several categories of property regularly cause headaches:
- Real estate purchased during marriage
- A house purchased during the marriage with community earnings is usually community property, even if the deed is in one name.
- If one spouse uses separate funds for the down payment or improvements, that may give rise to a reimbursement claim, but it usually doesn’t alter the basic community character of the house.
- Retirement accounts and stock plans
- The portion earned during marriage (401(k) contributions, pension accrual, stock grants) is community.
- The portion earned before marriage is separate.
- Mixed bank and investment accounts
- When separate and community funds are commingled, tracing is required to establish the separate portion.
- If the funds are hopelessly commingled, the entire account may be treated as community.
- Gifts and inheritances
- A gift or inheritance to one spouse remains that spouse’s separate property, even if received during the marriage.
- But if inherited money is used to buy property titled in both names or heavily commingled, you may be dealing with tracing and reimbursement, not a clean, separate asset.
Reimbursement and economic contribution
Even when an asset is clearly separate, the community estate (or the other spouse’s separate estate) may have a reimbursement claim. For example:
- Community funds are used to pay down the mortgage on one spouse’s separate house.
- Community funds are used to improve separate property (room additions, major renovations).
- One estate pays another estate’s debts or necessary expenses.
Reimbursement doesn’t change the character of the underlying asset. Instead, it gives the paying estate a claim that can be satisfied in the overall division—by awarding more of the other assets, or, in some cases, by a money judgment.
How property division actually happens
At the end of the day, property division in a Texas divorce usually follows this sequence:
- Identify every asset and debt (disclosure, discovery, inventories).
- Classify each item as community, separate, or mixed.
- Value the community items (and quantify any reimbursement claims).
- Divide the community estate in a “just and right” manner, taking into account the statutory and equitable factors.
- Confirm proven separate property to the spouse who owns it.
In many cases, spouses negotiate their own division in mediation. When they can’t, the judge applies these rules and factors and enters a division the court believes is fair in light of the evidence—not necessarily equal, but equitable under Texas law.
Steve Buitron