Divorces can be complex things, particularly when it comes to dividing up marital property. Texas is a community property state, so many people assume that means the judge will divide the marital assets in half, giving each spouse a 50% share, but that’s not always the case. In fact, the judge will consider several factors during property division, including:

  • Fault
  • Benefits from Continuation of Marriage
  • Disparity of Earning Capacities
  • Physical Health/Condition
  • Age
  • Community Estate Size
  • Separate Property Owned by Each Spouse
  • Anticipated Inheritances
  • Improper Use of Assets
  • Taxes
  • Spousal Support
  • Property in other Jurisdictions
  • Child Support
  • Nature of the Property

Some of the factors above are easier to understand than others. For instance, if there is a fault in the marriage, then the innocent spouse may be entitled to more property based on an assessment of the fault, such as abuse or cruelty.

Other factors are less easily understood. For example, a gift to one spouse is generally not considered community property, even though it may have been purchased with communal marital funds. The act of giving it as a gift transforms it from community property into separate property.

Understanding Community Property and Separate Property

So, what is meant by “community” property and “separate” property? We can see a couple of easy-to-understand examples below:

  • A single-family home, purchased with community property and lived in by both spouses, is an example of community property. It doesn’t really matter if only one spouse’s name is on the title. The court will consider it the property of both spouses (unless there are two homes in question, in which case the court may award one home to each spouse, or come to another “just and right” decision.
  • Separate property can include many things, but one good example would be something owned by one spouse before the marriage. This can include real property (homes and the like), but it can also include financial investments, jewelry and other possessions, and more. Separate property can also include items or property inherited by the spouse during the marriage, property the spouse acquired as a gift (including as a gift from the other spouse), and some types of personal injury recoveries.

Community property must be divided clearly from separate property, as only community property will be divided during the divorce. Anything considered separate property will (usually) remain with the spouse who owns that property. However, remember that there are no iron-clad rules when it comes to property division during a Texas divorce. Each case is unique.