The Texas Family Code provides for a just and right division of the community assets and debts of the parties. The first step in dividing the property is usually to complete a list of community property and debts and separate property and debts. Every asset and debt must be characterized as separate or community and assigned a value.  Texas courts will start with the community presumption, i.e. all property is assumed to be community property.

Spousal Support

Spousal Support or maintenance (sometimes called alimony) is available in Texas only under certain circumstances. Once a court determines that a spouse is eligible for maintenance, the court will determine the nature, amount and duration of support payments by considering all relevant factors, including the financial resources of the parties, education and employment skills, age, employment history and marital misconduct as well as many other factors.

Community Property

A court charged with dividing marital property begins with the community property presumption. All property possessed by either spouse during marriage is presumed to be community property. On dissolution of the marriage to over come the presumption of community property, the burden of proof is on the spouse claiming separate property and level of proof required is by "clear and convincing evidence".

Community property includes: 1) all property acquired by either spouse during marriage (except for separate property acquired during marriage); 2) recovery for loss of earning capacity or medical expense during marriage; 3) distribution of partnership profits or income during marriage; 4) earnings of children (and items purchased with these funds); 5) damages for injury to a child; 6) crops; 7) earnings of spouses, employee benefits, retirement, life insurance premiums paid by employer, disability benefits, worker's compensation; 8) Federal military and civil service retirement/disability; 9) rents, revenues and income from separate property; 10) livestock bred and raised during marriage; 11) lottery prizes and gambling winnings; 12) delay rentals paid on oil & gas leases; 13) cash dividends on separate stock; 14) commercial goodwill of a community property business; 15) separate property that has been transmuted by statutory agreement.

If community and separate property funds have been hopelessly co-mingled and therefor cannot be separated,  the presumption of community controls and the entire amount is community.

Separate Property

Property which constitutes a spouse's "separate property" cannot be divested from the owner by the Court in divorce proceedings. Separate property of a spouse is that: 1) acquired before marriage; 2) acquired after marriage by gift, devise or descent (inherited); 3) recovery for personal injuries; 4) property purchased with separate property funds; 5) community property partitioned by statute; 6) pecuniary loss for death of a child; 7) increase in value of separate stock due to market conditions; 8) professional goodwill; 9) stock dividends; and 10) income from a trust that is not received and to which the beneficiary has no claim, but only an expectancy.

So long as separate property can be traced and identified, it remains separate property, and its character will not be changed by the sale, mutation, exchange or substitution, of the property.

Debts

Divorce courts will also divide debts between spouses. This means any money you owe to any person or entity. You must include mortgages, car notes, credit cards personal loans and any other debt owed by you or your spouse.

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