Texas is a community property state, and that single fact shapes almost every property question in a Texas divorce. Community property is also widely misunderstood. Some people assume it means everything is automatically split down the middle; others assume that anything in one spouse's name belongs to that spouse alone. Neither is quite right, and the Texas Family Code explains why.
Section 3.001 of the Texas Family Code defines a spouse's separate property as three things: property owned or claimed by the spouse before marriage; property acquired by the spouse during marriage by gift, devise or descent, which covers gifts and inheritances; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Section 3.002 defines community property as the property, other than separate property, acquired by either spouse during marriage. Because wages earned during the marriage are not on the separate-property list, they are generally community property. Section 3.102 confirms that revenue from separate property is treated as community property too: it lists a spouse's personal earnings and the revenue from that spouse's separate property among the community property each spouse manages. So the house a spouse owned before marriage may remain separate, while the rent it earns during the marriage is generally community, unless the spouses have agreed otherwise, as Section 4.103 permits.
Section 3.003 presumes that property possessed by either spouse during or on dissolution of marriage is community property, and the degree of proof needed to establish that property is separate is clear and convincing evidence. In practice, a spouse who brought a savings account into the marriage, or received an inheritance during it, may need statements, deeds or estate records that trace the asset back to its source. Old records that seem unimportant can decide the question.
Title alone does not settle it. Under Sections 3.002 and 3.003, a car or bank account held in one spouse's name can still be community property. Section 3.102 addresses who manages and controls property during the marriage, which is a separate question from whether that property is community or separate.
At divorce, the court divides the estate. Section 7.001 directs the court to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. The statute does not say the division must be equal.
Section 7.002 addresses property acquired while a spouse lived in another state. Property that would have been community property if the spouse had been domiciled in Texas when it was acquired is divided in the same just and right manner, while property that would have been separate property is awarded to that spouse as separate property. That matters for families who moved to Texas from elsewhere.
Spouses can change the default rules by agreement. Section 4.002 requires a premarital agreement to be in writing and signed by both parties. During the marriage, Section 4.102 allows spouses at any time to partition or exchange all or part of their community property, and property transferred to a spouse that way becomes that spouse's separate property. Section 4.104 requires that agreement to be in writing and signed by both parties. These are the documents commonly called prenuptial and postnuptial agreements.
Divorcing spouses can also agree on a division themselves. Under Section 7.006, they may enter a written agreement concerning the division of property and liabilities, and if the court finds its terms just and right, those terms are binding on the court. If the court finds they are not, it may ask the spouses for a revised agreement or set the case for a contested hearing.
The marital estate includes what the spouses owe, not just what they own. Section 6.502 allows a court in a pending divorce to order a sworn inventory and appraisement of the parties' property, together with a list of debts and liabilities. Section 3.202 sets out which property answers for which debts during the marriage. For example, a spouse's separate property is not subject to the other spouse's liabilities unless both spouses are liable by other rules of law.
When the court has divided the estate, Section 6.711 requires it, on a party's request, to state in writing its findings of fact and conclusions of law, including the characterization and value of the assets, liabilities, claims and offsets on which disputed evidence was presented. Those findings show how the court classified and valued what was in dispute.
Characterization questions can become technical, especially when separate and community funds have been mixed in the same account for years. The Bowen Law Firm, PLLC, which handles family law matters in Houston, lists property division among its divorce services and prenuptial and postnuptial agreements among its family law work. Gathering account statements, deeds and records of gifts or inheritances before talking with any lawyer will make that conversation far more useful.
This article is general information, not legal advice. Every family's situation is different; for advice about yours, speak with a licensed Texas attorney.