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Property and divorce questions often become the most complex and emotionally charged part of a Texas divorce. From homes and vehicles to credit card debt and retirement accounts, each asset and liability brings its own legal considerations. Many spouses feel overwhelmed, unsure of what is separate property, what qualifies as community property, and how courts typically divide everything. Understanding how Texas law applies to your specific situation can ease the process. This guide answers the most common property and divorce questions, helping you gain clarity, reduce stress, and make informed decisions during one of life’s most challenging transitions.
What Counts as Community Property?
Texas is a community property state. That means any property either spouse acquires during the marriage belongs to both of them equally. This includes income, homes, cars, and retirement accounts. Even if only one spouse worked or purchased the item, it’s still jointly owned if it was acquired while married.
Examples of Community Property:
- Wages or bonuses earned during marriage
- Property purchased with joint funds
- Retirement contributions made during the marriage
- Businesses started while married
If you’re unsure whether something qualifies, courts look at the timing of the purchase and the source of the funds used.
What Is Separate Property?
Separate property belongs only to one spouse. It is not divided in the divorce. The court considers it separate if:
- You owned it before marriage
- You received it as a gift
- You inherited it
- You received it through a personal injury settlement (except for lost wages or medical bills)
You must prove that a specific item is separate. This usually requires clear records like receipts, titles, or bank statements.
Can My Spouse Take My House?
The answer depends on when you bought the house and how it was paid for. If you bought it before marriage and never used joint funds to pay the mortgage or make improvements, it may be separate. But if you paid the mortgage with joint income, the house could become part community property.
The court may also consider practical factors. If there are children involved and they need to stay in the home, the court might award temporary possession to one parent, even if the home belongs to both parties.
What Happens to Debt?
Debts get divided just like assets. If the debt was acquired during the marriage, it’s considered community debt. Even if only one spouse signed for a credit card or loan, the other spouse may still be responsible.
Common types of community debt:
- Joint credit cards
- Mortgages
- Car loans
- Medical bills
You can try to negotiate who pays what during the divorce. The court will step in if you can’t agree.
Do We Always Split Everything 50/50?
Texas law calls for a “just and right” division, not necessarily a 50/50 split. Courts aim for fairness, not strict equality. If one spouse earns far less, takes care of the children, or has health issues, they may receive a larger share of the property.
Judges consider:
- Length of the marriage
- Fault in the breakup (such as adultery or cruelty)
- Disparity in earning power
- Future financial needs
- Who gets custody of the children
Each case looks different. Don’t assume you’ll split everything equally.
How Do Retirement Accounts Get Divided?
Retirement accounts are often one of the most valuable assets in a divorce. Contributions made during the marriage count as community property. These include:
- 401(k)s
- Pensions
- IRAs
To divide these accounts, your attorney will prepare a Qualified Domestic Relations Order (QDRO). This document allows a plan administrator to transfer a portion to the other spouse without penalties or taxes.
What About Inheritances?
If you inherit money or property while married, it stays separate as long as you keep it that way. Mixing it with joint accounts or using it for family expenses can turn it into community property. This is called commingling.
To protect an inheritance, keep it in a separate account and avoid using it for shared purposes.
Can We Make Our Own Property Agreement?
Yes. Couples can agree on how to divide their property through a divorce settlement. This avoids letting a judge decide. These agreements must be in writing and signed by both parties.
If the agreement meets legal standards and both spouses signed willingly, the court will usually approve it.
You can also create agreements before or during the marriage, like prenuptial or postnuptial agreements. These can define what stays separate and how things get divided in case of divorce.
What Happens If We Own a Business Together?
A jointly owned business can complicate things. The court will consider:
- When the business was started
- How much each spouse contributed
- The value of the business
- Whether one spouse wants to continue running it
In some cases, one spouse buys out the other. In others, both keep partial ownership or sell the business entirely.
You’ll likely need a valuation expert to determine the business’s fair market value before it can be divided.
Can the Court Consider Adultery or Bad Behavior?
Yes. Texas courts may consider fault in the breakup when dividing property. If one spouse committed adultery or wasted assets through reckless behavior, the court could award more property to the other spouse.
Bad behavior must be proven with evidence. Text messages, financial records, or testimony may support the claim.
What If My Name Isn’t on the Title?
Even if your name isn’t on the deed or account, you may still have a legal right to part of the asset. The court focuses on how and when the item was acquired. If it was purchased during the marriage with joint funds, it may still be community property.
For example:
- A home bought while married with only one name on the title
- A car financed with income earned during the marriage
- Bank accounts funded by joint income
Your attorney can help trace funds and gather the documents you need to claim your share.
How Do Courts Handle Hidden Assets?
Sometimes a spouse tries to hide money, property, or accounts during a divorce. This is illegal. If discovered, the court may award a larger share of property to the other spouse.
Ways people try to hide assets:
- Undervaluing property
- Hiding cash
- Delaying bonuses or business deals
- Transferring assets to friends or family
You can request financial disclosures or hire a forensic accountant to uncover these tactics.
Can I Stay in the House Until the Divorce Is Final?
Possibly. Temporary orders during divorce may allow one spouse to stay in the home while the case is ongoing. Courts often prefer to avoid disrupting children’s routines, so they may let the custodial parent stay.
These orders don’t determine final ownership. They only apply during the divorce process.
How Long Do I Have to Fight for My Property Rights?
Once the divorce is final, it’s difficult to change the property division. If you discover fraud or were forced to sign something under pressure, you may have grounds to challenge it. But you must act quickly.
Most post-divorce property disputes must be raised within two years. Speak with a lawyer if you believe your property rights were violated.
Final Thoughts
When it comes to property and divorce questions in Texas, understanding the rules of community and separate property is just the beginning. While the law offers a framework, each case allows room for negotiation and individualized outcomes. The key to protecting your financial future lies in staying informed, gathering detailed documentation, and actively participating in decisions. Don’t hesitate to ask questions—knowing your rights and responsibilities empowers you to navigate property division with greater clarity and confidence.
Questions on property division issues related to divorce? Contact the Law Office of Bryan Fagan
If you have any questions about the information that we went through today and yesterday, please contact the Law Office of Bryan Fagan, PLLC. We offer free-of-charge consultations with our licensed family law attorneys six days a week. It is always an honor to meet with the people in our community, just like you, to help answer questions and address concerns directly. Thank you for your interest in this topic and for joining us in this discussion.
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