In a community property state, the fight is rarely over the split. It is over what belongs in the pile to begin with.
The presumption that starts everything
Texas presumes that everything either spouse owns at the time of divorce is community property. That presumption applies to the house, the paychecks, the retirement contributions made during the marriage, the business built during the marriage, and the debts.
Separate property is the exception, and the burden of proving it falls on the spouse claiming it. Property is separate if it was:
- Owned before the marriage
- Received during the marriage by gift
- Inherited during the marriage
- Recovered for personal injuries, other than lost earning capacity during the marriage
The standard of proof is clear and convincing evidence — higher than the ordinary civil standard. An assertion is not enough. Documents are.
"Just and right" is not fifty-fifty
Texas courts divide the community estate in a manner they deem just and right. In many cases that lands near an even split, but a court may award a disproportionate share after considering factors such as the spouses' earning capacities, education, health, fault in the breakup of the marriage, the size of each spouse's separate estate, and which parent will have primary care of the children.
A court cannot divest a spouse of separate property. It can only divide what is community.
Tracing: how separate property gets proven
The trouble is that money mixes. A down payment made with inherited funds goes into a house titled during the marriage. A premarital brokerage account keeps receiving deposits from a community paycheck. This is commingling, and commingled funds are presumed community until traced.
Tracing is a documentary exercise: bank statements, closing documents, brokerage records, and sometimes a forensic accountant reconstructing the path of specific dollars. It is unglamorous and it is often decisive. If you believe you have separate property, start collecting the paper trail now — statements older than seven years can be genuinely hard to recover.
Questions about your own situation?
A short conversation is usually enough to tell you where you stand. We'll explain your options in plain terms.
Reimbursement claims
Even when an asset is clearly separate, the other estate may have a claim against it. If community funds paid down the mortgage on a spouse's separate-property home, or community labor built the value of a separate-property business, the community estate may be entitled to reimbursement. These claims are equitable, discretionary, and worth raising early rather than discovering after mediation.
The assets that cause the most trouble
- Retirement accounts. The portion earned during the marriage is community. Dividing a 401(k) or pension usually requires a qualified domestic relations order after the decree — a separate document that people forget to complete.
- Closely held businesses. Valuation, goodwill, and the difference between personal and enterprise goodwill are frequently contested.
- The house. Often the largest asset and the hardest to divide. Refinancing capacity, not fairness, tends to decide who keeps it.
- Stock compensation. Options and restricted units that vest across the marriage line require careful apportionment.
After the decree
A property division is not finished when the judge signs. Deeds must be recorded, retirement orders drafted and accepted by plan administrators, accounts retitled, and refinances completed. Because we also handle probate and estate planning, we treat the follow-through as part of the matter — including the will and beneficiary updates the decree does not make for you.