Nine states currently operate under community property law in the event of a divorce. Texas is one of them. Under community property law, marital assets are split equally, without consideration of whether one spouse contributed more to the marriage financially than the other. The remaining states have implemented the theory of equitable distribution, which means the beginning presumption is that all assets will be divided equally, but specific circumstances can change that distribution so that it’s fair, although not necessarily split equally.
Under community property law, all marital assets are held jointly without regard for who paid for the assets or whether one spouse worked and the other did not. In a community property state, before dividing assets during a divorce, the court will first have to determine whether each asset is a marital asset or the separate property of one spouse.
Texas Family Code, Chapter 3 discusses marital property rights and defines separate and community property. Texas Family Code, Chapter 7 discusses how property gets divided during a divorce and contains separate and community property provisions.
There are often variations between states that operate under community property law. As an example, California is a strict community property state. This means marital property is divided strictly in half, with each spouse receiving 50 percent of the marital assets.
Texas is also a community property state. However, Texas tends to divide assets a little more reasonably than California. This is not to say that you will receive significantly more than half of the marital assets, no matter whether you provided those assets or not. Debts acquired during the marriage—by either spouse—also will be divided equally.
Any property that was owned by a spouse before the marriage or any inheritance or any gift that was given to one spouse during the marriage usually remains separate property. The “usually” is because when the gift, inheritance, or bank account acquired before the marriage is commingled with marital assets, the result can have blurry lines.
As an example, if you go into your marriage with a bank account containing $75,000 and during your marriage, your Aunt Jo leaves you a home worth $350,000, then these assets are yours alone. However, there are exceptions to this rule. If you deposit your paycheck earned during the marriage to the same account, you have just commingled separate property with marital property.
Ten years later, as you attempt to tell a judge that $75,000 should be yours alone, you will likely not succeed. In the same way, if you add your spouse’s name to the deed of the house left to you or use marital funds to improve the house, then under community property laws, your spouse will be entitled to at least a portion of the worth of the house.
Even if you do neither of those things, if you earn rental income from the property you inherited from your Aunt Jo, that rental income is community property. A prenuptial or postnuptial agreement can ensure that your separate property remains your separate property, as few judges will ignore a well-drafted agreement during asset division.
Retirement accounts are another asset that can be more difficult to divide equally. Suppose you had invested $100,000 in your retirement account before your marriage. During your marriage, not only did you invest another $75,000 into the retirement account, but the original $100,000 has made money due to successful broker investments. You would have to split the $75,000 in the account with your spouse and could possibly have to split the amount that has been appreciated from the original $100,000.
So, the short answer to whether you will have to pay half of your assets to your ex in Texas is “yes.” If you have worked to ensure that your separate assets remained yours alone—whether through a pre or post-nuptial agreement, by avoiding commingling, or another method—then you may be able to keep those assets without having to split them. Everything else will be considered a marital asset, subject to being split 50/50 between you and your spouse.
It is always a good idea to consult with an experienced Houston divorce attorney at Moving Forward Divorce Lawyers when going through a divorce, as the laws and procedures can be complex. Dividing assets is difficult, and you need someone to ensure you get what you deserve during the divorce. Since your case’s outcome can significantly impact your financial future, you need someone fighting for you and your rights. Call us at 713-589-4748 or fill out our confidential contact form to learn more about your legal options.
Renae is a native of Pennsylvania and the middle child of five girls. She earned her bachelor’s degree in political science from the University of Colorado, Boulder before entering the military as an officer in the Ordnance Corps. After separating from the military, Renae raised her two oldest boys for ten years before returning to the University of Denver where she earned her law degree in 2012. Renae is licensed to practice in the states of Colorado, Kentucky, and Texas. Renae has practiced criminal law as a public defender in Colorado, criminal and family law in her firm in Colorado, and now family law as part of our firm at Moving Forward Divorce Lawyers. When she’s not busy raising her two youngest boys, Renae enjoys jogging, mountain biking, gardening, and boating. Renae is a bit of a foodie and loves to dabble in gourmet cooking. Read more here.
You should seek the assistance of an experienced Texas family attorney who is familiar with the laws and can fight on your behalf for the things you want out of your divorce.
It is always a good idea to consult with an experienced Houston divorce attorney at Moving Forward Divorce Lawyers when going through a divorce. Filing the right paperwork and petitioning the court takes time, experience, and skill. If you make a mistake, you will lose money and valuable time. This could impact your future significantly. Call us at 713-589-4748 or fill out our confidential contact form to schedule a free consultation and learn more about your legal options.