division of property

How the Court Divides the Property


A married couple shares many things between them. Most have purchased or invested property like houses, cars and other property. If the couple divorces, they will have to settle the division of their property.

Texas as a Community Property State

Texas is one of the states that uphold the concept of community property. All of the property that either spouse acquired while they were married will be community property. Both spouses will share it equally.

Thus, a spouse has to prove which of the properties are their separate property. Separate property is acquired prior to the marriage or any property that is specific to one spouse. It can be through inheritance, as a gift, or as remuneration for a personal injury.

Anything that has not been declared as the separate property will then be part of the community property. It will be subject to distribution by the court. 

How the Court Divides the Property

The guiding principle of the divorce court is equity and fair play. The judge will consider all the circumstances surrounding the divorce. Custody will be a factor since they need to look out for the welfare of the child. Thus, the parent who is taking responsibility for the child might be given some favor. 

They may also consider the disparity of the ex-spouse’s income and even who was at fault in the divorce. The divorce may place one party at a disadvantage. For example, a housewife who would suddenly have no source of personal income. The judge may also consider that one party may have difficulty if they seek employment because of no work experience due to marital responsibilities.

Investments and Pension Plans

Any investments and retirement plans that have been undertaken at the time of marriage is community property. It is also under the discretion of the judge whether to divide the investments or not. He may also use the same considerations for real property. 

The judge is not obliged to equally divide the investments. The court may even award the retirement benefits to the other spouse. The lawyers of both parties will have to issue a Qualified Domestic Relations Order (QDRO) to the employer to distribute the benefits to each ex-spouse in accordance with the court order.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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