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Division of Property in Texas

Alex Graves, award-winning director of “The West Wing” recently finalized his divorce from his wife of 19 years. Pursuant to the final order, the spouses’ property was divided evenly. Does the State of Texas mandate a fifty-fifty division of property upon divorce? The short answer is “no.”

The State of Texas is one of a hand-full of community property states in the Union—attributable to Texas’ colonial Spanish experience. As such, the property of married individuals may be characterized as either separate property or community property. The Constitution of the State of Texas provides that: “all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift devise or descent, shall be the separate property of that spouse.” Tex. Const. Art. 16, Section 15. While the Constitution of the State of Texas does not define “community property” it has been a widely accepted principle that all property, acquired after marriage, which does not fall within one of the specifically enumerated categories of separate property, is the community property of the spouses. Accordingly, the Texas family code provides that: “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” See. Tex. Fam. Code 3.003.

What happens upon the dissolution of marriage? In Texas, a spouse may not be divested of his or her separate property. That is, all property characterized as the separate property of a spouse is not subject to division upon entry of a Final Decree of Divorce. However, in Texas, all property characterized as the community property of the spouses is subject to division upon divorce. Texas courts have great latitude to effectuate a division of the community estate. Texas courts are not bound to follow an equal fifty-fifty division of the assets of the community. Texas courts may divide the community estate in a manner that is “just and right.” See Tex. Fam. Code Section 7.001. The court may award a disproportionate share of the community estate, to one spouse, taking into consideration the following factors outlined in the Murf vs. Murf case: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage business opportunities of the spouses; the spouses’ educations; the spouses’ relative physical and financial conditions; the spouses’ separate estates (if any); the nature of the property to be divided; the fault in the breakup of the marriage (adultery, cruel treatment, et al.); the parties’ attorneys’ fees; or additional causes of action.

Based on these factors, the court may award one spouse, for example, sixty percent of the community and the other spouse forty percent; perhaps, the court may award one spouse ninety percent of the community and the other spouse ten percent—each suit is individual and the proponent of a disproportionate division of the community estate usually bears the burden of showing that such a division is proper.

To learn more about Texas’ characterization of property and the “just and right” division of the community estate, please schedule a consultation by contacting our law office at 214-692-8200.