Am I entitled to 50% of our community estate in Texas … the short answer here is no. Despite what you may have heard, Texas is not a 50/50 community property state, and to say so would be an oversimplification. Rather than a half and half division of community property, the Texas Family Code mandates a “just and right” division of community property. And believe me, your idea of “just and right” is very different than your spouse’s idea of what is “just and right.”
Equality vs. Equity
Dividing property up 50/50 would be an example of equality rather than equity. Equality would in this case mean treating both parties exactly the same, regardless of any specific or unique circumstances. Equity, on the other hand, means dividing up property while taking each party’s unique situation into account.
For example, a Texas judge in a divorce case, in aiming for a “just and right” division of community property, would consider such factors as the levels of education and earning capacity of each spouse, and whether there was any adultery or cruelty from one spouse towards the other. So, if one spouse had a considerably lower level of education and/or income, they might walk away with a larger share of the community property, especially if cruelty or misconduct by the other spouse is involved.
Other factors that a court might consider when making an equitable division of marital assets include:
- Expected inheritance of either spouse
- Each spouse’s earning potential
- Whether or not the separate property was improved through marital effort
- Whether or not the marital property was created through one spouse’s pre-marital assets
- Marital debts
- Whether one spouse wasted marital assets
- Health and age of each spouse
- Fault in the break-up of the marriage
- Amount of attorney fees each spouse has to pay
- Size of a spouse’s separate estate
- Amount of temporary support paid by one spouse
- Gifts are given to one spouse and not the other
An attorney will use these factors, among others, to argue why one spouse deserves a larger share of the marital assets in order to protect the quality of life to which they were accustomed, to honor the benefits they brought to the marriages, or to compensate them for things they suffered during or as a result of the marriage.
That’s not to say that community property will never be divided up 50/50 in a Texas divorce, however. If both spouses make the same amount of money and there is no grounds for fault on either side, they may well end up with a 50/50 ruling.
What is Community Property?
So, what exactly is being divided up here? What counts as community property in Texas?
According to Texas law, community property refers to all property acquired by one spouse or the other, or by both, during the course of the marriage. This excludes separate property, which includes property that was acquired by one spouse before the marriage, as well as some types of property acquired during the marriage such as gifts, inheritance, monetary recoveries for personal injuries, or property gifted from one spouse to the other.
While this definition of community property is fairly broad, some more specific examples of community property in Texas include:
- The family house,
- Vacation properties,
- Bank accounts,
- Musical instruments, and
If either spouse involved in the divorce claims that any property acquired during the marriage is separate property rather than community property, then they have to prove that to the court. The spouse making this claim bears the responsibility of providing the court “clear and convincing” evidence that the property in question is truly separate property.
Equitable Division of Assets
In summary, Texas is NOT a 50/50 state. The judge’s duty in divorce cases is to divide community property between the two spouses in a way that is equitable, rather than strictly equal. Hopefully, you now have a slightly better handle on the facts of divorce and the division of property in Texas. It’s always best to consult with a professional before proceeding when you’re not in a 50/50 state!