The court must divide the parties’ community property at the time of divorce in a manner that the court decides is “just and right” after taking into consideration the rights of the husband and the wife and any children of the marriage. The division of property need not be equal, but there must be some reasonable basis for decreeing an unequal division.

Types of Marital Property

All property owned by either party to a marriage is either separate property or community property. Unless otherwise agreed to in writing, a spouse’s separate property consists of: (1) property owned or claimed by the spouse before marriage; (2) property acquired by the spouse during marriage by gift or inheritance; and (3) any recovery for personal injuries sustained by the spouse during marriage, except for loss of earning capacity. Unless otherwise agreed to in writing by the spouses, the parties’ community property consists of all property, other than separate, acquired by either spouse during marriage.

The Community Property Presumption

Under the Family Code, property possessed by either spouse during or on dissolution of the marriage is presumed to be community property. The presumption may be rebutted by clear and convincing evidence—a high burden. Because property possessed by either spouse during or on dissolution of marriage is presumed to be community property, any given piece of property may be found to be community property even though it was conveyed to one of the spouses individually. For example, let’s assume you purchased a car prior to your marriage. This car should be your separate property because you owned it before you married your spouse. Upon divorce, however, this car will be presumed to be community property—and therefore subject to a just and right division by the court— unless you can prove by clear and convincing evidence that you purchased the car prior to your marriage.  This is a very straightforward example. In many cases, “tracing” marital property to its separate origin can be a complicated exercise.

Factors that Impact Division of Property

As noted above, a just and right division of community property upon divorce does not mean that the community estate will be split “50-50” between the parties. Below are some of the factors that can influence how a court divides community property:

  • Fault—a court may consider fault in the break-up of the marriage and award the party not at fault a greater percentage of the property.
  • Earning capacity and business skills—a court may consider the disparity in incomes or of earning capacities of the parties in dividing the estate of the parties.
  • Age, Physical Condition, and Need for Future Support—a court may consider the age of the parties and their health since these factors reflect on their abilities to earn a living, and their need for future support.
  • Size of Separate Estates and Expected Inheritance—the spouse with fewer separate assets may receive a larger share of the community estate.
  • Nature of Property—a court may consider which party would benefit the most from a particular community asset.

Seeking division of property but don’t have the right representation? Ben Carrasco is here to help!

at 512.320.9126  to speak with an Austin Property Division Attorney