Family Law Fundamentals Part 2: Property Division in Texas

Taylor Mohr
May 5
5 min read

Welcome back to our Family Law Fundamentals series, where we break down the basics of Texas family law in clear, relatable terms. Today, we’re diving into one of the most common (and most misunderstood) topics in a divorce: marital property.

Whether you’re thinking about divorce, going through one, or just want to understand your rights and responsibilities as a spouse, it’s crucial to understand how property is categorized—and divided—under Texas law.

Remember friends, we can't give you legal advice if we aren't your attorneys. Everything in this blog is educational only. If you have questions about your specific situation, click the button below to schedule a consultation!

Community vs. Separate Property

Texas is a community property state, which means that, as a general rule, everything you or your spouse earn or acquire during the marriage belongs to both of you equally—regardless of whose name is on the title or whose paycheck funded the purchase. This means that income, retirement benefits, personal property, cars, and real estate acquired during the marriage is community property, but...

Not everything is community property. Some assets may be considered separate property, which means they belong to one spouse alone and are not divided in a divorce. In Texas, separate property includes:

Property owned by one spouse before the marriage
Gifts or inheritances received by one spouse during the marriage
Certain personal injury settlements

What Happens to Separate Property?

It sounds straightforward, but here’s where it gets tricky: the burden of proving that something is separate property falls entirely on the spouse claiming it. And if you can’t prove it with “clear and convincing” evidence, the court is going to treat it as community property.

That means documentation matters. If you inherited money and deposited it into a joint account and mixed it with community funds, you might need bank records going back years to trace the separate nature of those funds. The more commingled or transformed the asset becomes, the harder it is to prove it’s separate.

The most common separate property issues we see are related to retirement accounts and real estate. Retirement benefits you earned before marriage are your separate property, but you have to prove (1) how much was in your account before marriage and (2) that your separate property hasn't been withdrawn between marriage and the divorce proceeding. If you sold a separate property house to purchase a house during the marriage, a portion of the house purchased during the marriage may be your separate property, depending on whether you can trace it.

If you are able to prove that property is your separate property, the court cannot grant it to the other party. Instead, the court must confirm that it is your separate property.

What happens to community property?

Any property that is owned by the spouses upon divorce and not proved to be a spouse's separate property through "clear and convincing evidence" falls into the category of community property. When a divorce is filed, the court’s job is to divide the community property in a way that is “just and right.” That doesn’t necessarily mean a 50/50 split. Instead, the court looks at what is fair under the specific circumstances of your case. Factors the court might consider include:

The earning capacity of each spouse
Who is the primary caregiver of the children
Fault in the breakup of the marriage
Health conditions
Future financial needs

So, if one spouse earns significantly more or one spouse was at fault for the breakdown of the marriage (like in cases of infidelity or abuse), the court might award a disproportionate share (meaning more than 50%) of the community property to the other spouse. Courts also frequently award a disproportionate share to a spouse if the other spouse spent money that shouldn't have been spent or disposed of assets without the other spouse's knowledge.

When the court is deciding on a division of the community estate, the entire value of the estate is normally divided by assigning assets and debts to each spouse until each spouse has received the right percentage of the estate. Dividing the estate does not necessarily mean that all individual assets are divided. For example, if one spouse has $50,000 in a 401(k) and the other spouse also has $50,000 in a 401(k), the court will likely award each spouse their own 401(k) instead of dividing each of them in half.

Keep in mind that while courts can divide an estate disproportionately, that rarely means that one spouse will receive an overwhelming majority of the community estate. Most courts start with an assumption that a 50/50 division is "fair," and if a disproportionate division is appropriate, the property division frequently falls in the range of 50/50 to 60/40, unless there are other extraordinary circumstances involved.

Why This Matters

Understanding these rules can help you protect your interests, whether you’re staying married or facing divorce. If you’re coming into a marriage with substantial assets, or if you’ve received a gift or inheritance, consider speaking with a family law attorney early on—not just when things go south.

And if you’re already in the middle of a divorce, knowing the difference between community and separate property can help you gather the evidence you need to make your case.

❓ FAQs About Property Division in Texas Divorce

1. What happens if only one spouse’s name is on a house or account?

In Texas, whose name is on the title doesn’t necessarily control ownership. If the asset was acquired during the marriage, it’s presumed to be community property—even if it’s titled in only one spouse’s name. If a piece of real property was owned by one spouse before marriage, that property is that spouse's separate property, and a deed showing that the spouse purchased it as a "single person" can be effective evidence to meet the high standard for proving separate property. For bank accounts, retirement accounts, and the like, only one spouse being named on the account is normally not conclusive.

2. Is my retirement account considered community property?

Any portion of a retirement account earned during the marriage is generally community property—even if the account is in only one spouse’s name and even if the account itself existed before marriage. This includes any income earned on investments held in the account during the marriage. The court can divide that portion in a divorce.

3. How do I prove that something is my separate property?

You’ll need clear and convincing evidence, such as bank records, gift letters, inheritance documents, or purchase receipts showing when and how the asset was acquired. You'll also have to be able to connect all the dots with documentation if your separate property has been transferred between accounts or used to purchase property. Documentation and tracing are critical.

4. Can my spouse get part of my inheritance?

Not unless you commingled it with community property in a way that makes it impossible to trace, or if you intentionally gifted part of it to your spouse. An inheritance kept separate and documented is generally protected.

5. What if we agree on how to divide everything?

Agreements are encouraged! If you and your spouse agree on property division, the court will usually approve your agreement. To guarantee that an agreement is accepted by the court, it is usually incorporated into a binding mediated settlement agreement. However, it’s still important to understand your rights before you sign anything.

This post is part of our Family Law Fundamentals series, where we tackle the questions real families have about Texas divorce, custody, and property laws. Have a question you'd like us to answer in a future post? Send it to admin@mohrlawgroup.com or drop it in the comments!