This page details the laws governing property division under the Texas courts. Please call and speak with Kevin Sralla, a San Antonio family lawyer, we can also set up a free consultation to discuss your situation in person.
Texas is a community property state. This means that all property acquired by either spouse during the marriage is owned equally by both spouses. In a divorce proceeding, the judge will divide the property between the parties “in a manner that is just and right.” The Court makes this decision based on equitable considerations on a case-by-case basis. For the most part and in most cases, courts endeavor to divide the community property on roughly an equal basis (50/50).
Under certain extreme circumstances, a spouse can petition the Court for a disproportionate distribution of community property, resulting in that spouse coming away with greater than 50% of the pool of community assets. The percentage breakdown can go as high as 60/40 or in the most extreme cases, 65/35. Disproportionate distribution is appropriate under circumstances that include, but are not limited to, situations where: one spouse is exclusively at fault for the breakup of the marriage, one spouse has engaged in acts of cruelty toward the other spouse, one spouse is disabled and unable to adequately support himself/herself, one spouse has significantly less education and employability than the other spouse and one spouse has considerably less earning power than the other spouse.
Only community property is subject to division in a Texas divorce. Thus, each spouse is entitled to keep 100% of their separate property following a divorce. Separate property, as distinguished from community property, generally includes: property owned by one spouse before the marriage, gifts and inheritances given just to one spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested (enabling the pension holder to access the funds) before the date of marriage. Property purchased with a spouse’s separate funds will remain that spouse’s separate property. A business owned by a spouse prior to marriage remains that spouse’s separate property, although a portion of the value of the business may be considered community property if the business grew, or increased in value, during the course of the marriage, or if both spouses worked at the business. Finally, the commingling of separate and community property will usually result in the conversion of the separate property (in whole or in part) to community property.
One of the stickiest situations that can arise during the course of dividing marital property is the Court’s decision on how to handle the marital home, particularly where children are involved. Generally, when children are involved the party appointed as the primary conservator of the children usually will receive the house. If there is equity in the house at the time it is awarded, the spouse that does not receive the house is generally entitled to one-half of the equity that exists in the property at the time of divorce. If there are no children, and neither spouse has a superior legal right to the property, the Court will decide who gets the house at trial based on the evidence and testimony offered by the parties. Typically, the Court will examine the needs of the parties, financial strength of the parties, fault in the breakup of the marriage and any other relevant factor when determining how to award the marital home.
When choosing an attorney to handle your property division issues, it is critical to have an effective advocate in your corner who knows how to present facts clearly and concisely to the Court in a persuasive manner. At Sralla Law Offices, we maximize our clients’ entitlement to marital property through a thorough understanding of the Texas Family Code and seasoned knowledge of what it takes to bend the judge’s ear in our client’s favor. Call Kevin “Buck” Sralla, an experienced family law attorney, for a free consultation today.
Kevin “Buck” Sralla
Welcome, I am Kevin “Buck” Sralla, an experienced family law attorney in San Antonio, TX. I am licensed to practice in Texas state courts and skilled at advocating for my clients’ rights whether the setting be in a courtroom before a judge or jury or an informal mediation or settlement negotiation process.