Dallas Property Division Lawyer Protect your home, your savings and your business.

How property is divided in a Texas divorce

Texas is a community property state. When a marriage ends, the court divides the community estate "in a manner that the court deems just and right," under Texas Family Code § 7.001. Separate property is not divided at all; it stays with the spouse who owns it.

"Just and right" does not mean an automatic 50/50 split. Texas courts may consider factors such as each spouse's earning capacity, health, education, who will care for the children, the size of each spouse's separate estate, and fault in the breakup of the marriage. Many divisions end up close to equal, but a court has room to award one spouse more when the facts support it.

The division covers debts as well as assets. A court can assign community debts between the spouses as part of the same just-and-right division.

Community or separate: what decides it

Under Texas Family Code § 3.001, separate property is what a spouse owned or claimed before marriage, what a spouse received during marriage by gift, devise or inheritance, and a personal injury recovery (except any part for lost earning capacity during marriage). Everything else acquired during the marriage is community property under § 3.002.

Whose name is on an account, a car title or a deed does not decide the question. Section 3.003 presumes that all property either spouse possesses during or at the end of the marriage is community. The spouse claiming separate property has to prove it by clear and convincing evidence, usually with records that trace the asset back to a separate source.

• A paycheck earned during the marriage is community, even if it goes into an account in one name.
• A car bought during the marriage with community income is community, even if titled to one spouse.
• A house you owned before the wedding is generally separate, because Texas looks at when the right to the property first arose.
• Interest, dividends and rent earned on separate property during the marriage are generally community, unless the spouses signed an agreement saying otherwise (Texas Family Code § 4.103).

When assets are hidden, wasted or moved

Texas law gives a spouse tools when the other spouse conceals property, drains accounts or moves assets out of reach. During the case, a court can order a sworn inventory and appraisement, order a party to produce documents, limit spending to reasonable living expenses and prohibit transferring or concealing property (Texas Family Code §§ 6.501 and 6.502).

Putting community money in a relative's name or a new company, spending large sums without the other spouse's knowledge, or transferring assets before the divorce is filed does not take that value out of the division if it can be traced. Secret accounts are usually found through tax returns, subpoenas to banks and brokerages, sworn inventories and depositions.

If a court finds that one spouse committed actual or constructive fraud on the community, Texas Family Code § 7.009 lets it rebuild the estate on paper as if the money had not left, then divide that "reconstituted estate." The wronged spouse can receive a larger share of what remains, a money judgment, or both.

Finding the evidence is the hard part. That is where subpoenas, depositions, bank and brokerage records and, in larger cases, a forensic accountant come in.

How John helps with property division

John B. Polk has practiced family law in Dallas for more than 25 years and represents both women and men. On property cases he works with valuation experts, forensic accountants, CPAs, tax advisors and financial planners, so the numbers behind a settlement are tested before you rely on them.

• Building a complete list of assets and debts, including accounts the other side has not disclosed.
• Tracing separate property through bank and brokerage records, with an accountant where the paper trail is long.
• Valuing real estate, investments, retirement accounts and businesses with the right expert.
• Asking the court for temporary orders that protect the estate while the case is pending.
• Negotiating a division that fits your life after divorce, not just a number on a spreadsheet.

He prepares every litigated case as if it will go to trial while exploring settlement, which gives you a clear view of what a judge is likely to do with your facts. Homes, retirement and equity awards have their own rules, covered on homes, retirement and investments, and a family company is covered on business valuation and protection.

Your options for dividing property

To protect your financial future, choose a path that gets you complete financial disclosure, and test every offer for taxes, cash flow and long-term costs such as the mortgage before you sign. Property can be divided through direct negotiation between lawyers, through mediation, through a collaborative divorce, through arbitration or at trial. John has resolved hundreds of cases in mediation, as an attorney or as the mediator, and is trained in collaborative law.

The right path depends on how complete the financial disclosure is, how much trust is left and whether there is a real dispute about character or value. A settlement can also include terms a court would not order on its own, such as a schedule for selling a property or who keeps which items of furniture.