Dividing Property in a Texas Divorce: Community Property and the "Just and Right" Division

Texas is a community property state, but it does not require a 50/50 split. A Texas judge divides the community estate in whatever way is "just and right," and that can mean unequal shares when the facts call for it. What each spouse owned before the marriage, inherited or received as a gift stays theirs, as long as they can prove it.

Most property fights in Texas come down to two questions: which bucket an asset belongs in, and how the judge should split the community bucket.

Separate property

Texas defines separate property in its Constitution and in Family Code § 3.001:

(1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Separate property is not divided in the divorce; the court confirms it to its owner.

Community property, and the presumption

Everything else acquired during the marriage is community property. Family Code § 3.002: "Community property consists of the property, other than separate property, acquired by either spouse during marriage."

The law starts from the assumption that everything is community. Family Code § 3.003:

(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. (b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.

Clear and convincing evidence is a demanding standard. A spouse who says a bank account holds an inheritance has to prove it with records, not memory. Money that has been mixed with community funds until it can't be traced usually ends up treated as community.

A Texas difference: income from separate property

In Texas, the income that separate property produces during the marriage (rent from a building, dividends on inherited stock, interest) is generally community property, even though the asset itself stays separate. The Texas Constitution lets spouses change that by agreement. Article XVI, § 15 allows them to "agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse." Without such a written agreement, the income is community.

The "just and right" division

The core rule is Family Code § 7.001:

In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

The statute lists no factors. In practice, Texas judges often divide the community roughly equally, but they can and do award a larger share to one spouse. Commonly weighed circumstances include differences in earning capacity, health, who will care for the children, and fault in the breakup of the marriage. Those considerations come from decades of court decisions rather than from the statute, so the result in any case depends heavily on its facts.

Property the spouses acquired while living in another state, which would have been community property had they lived in Texas, is divided the same way under § 7.002(a).

Settling the division yourselves

Most couples agree on the division. Family Code § 7.006(a) allows the spouses to make "a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse," and under § 7.006(b), if the court finds the terms just and right, "those terms are binding on the court." Until the divorce is granted, either spouse can back out of such an agreement unless it is binding under another rule of law, such as a mediated settlement agreement.

Reimbursement when one estate paid for another

Marriages mix money. Community funds pay down the mortgage on a house one spouse owned before the wedding; separate funds pay for a remodel of the community home. Texas handles this with a reimbursement claim, rewritten in 2023. Family Code § 3.402(a):

(a) A claim for reimbursement exists when one or both spouses use property of one marital estate to confer on the property of another marital estate a benefit which, if not repaid, would result in unjust enrichment to the benefited estate.

Under § 3.402(d), the benefit is valued "as of the date of the trial's commencement." Paying a debt is measured by the amount paid; improvements to real property are measured by the increase in value they caused; and a spouse's "time, toil, talent, or effort" spent building up a separate business beyond what was reasonably necessary is measured by its value. The court resolves reimbursement using "equitable principles," and it can offset claims against each other.

Some payments never create a reimbursement claim. Under § 3.409, these include child support, alimony or spousal maintenance, living expenses, contributions or liabilities of nominal value, and "a student loan owed by a spouse."

The house

A house bought during the marriage is presumed community property and goes into the just and right division. A house one spouse owned before marriage stays that spouse's separate property, though the community may have a reimbursement claim if community money paid down the mortgage or improved it.

While the case is pending, a court can give one spouse exclusive use of the home under the temporary orders statute (§ 6.502(a)). When the decree awards the home to one spouse and requires them to pay the other for their share, Texas law allows an owelty lien to secure that debt against the homestead (Property Code § 41.001(b)(4)).

Retirement accounts and pensions

Family Code § 7.003 requires the court to "determine the rights of both spouses in a pension, retirement plan, annuity, individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan." The community share, the part earned during the marriage, is divided in the just and right division.

Employer plans usually need a qualified domestic relations order (QDRO) to pay the other spouse. The court that granted the divorce keeps continuing, exclusive jurisdiction to sign one, even years later, and to fix one that a plan rejects (§§ 9.101–9.104).

Hiding or wasting assets: fraud on the community

A spouse who drains, hides or gives away community property can be made to account for it. Family Code § 7.009(a) defines the tool:

(a) In this section, "reconstituted estate" means the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred.

The court calculates what the estate would have been worth without the fraud, divides that larger figure in a just and right manner, and can award the wronged spouse a bigger share of what remains, a money judgment against the other spouse, or both (§ 7.009(c)).

Debts and taxes

Debts are part of the estate the court divides. The decree assigns responsibility between the spouses, but it does not bind the creditor: if a joint credit card is assigned to your ex and your ex doesn't pay, the lender can still pursue you. Careful settlements close or refinance joint accounts.

In dividing property, the court may consider whether an asset will be subject to taxation and when the tax would have to be paid (§ 7.008). A retirement account and a bank account with the same balance are not worth the same after taxes.

Pets

Texas has no divorce statute on pets; they are divided as property. The only Family Code provisions naming pets appear in the protective order chapter. A protective order can prohibit "removing a pet, companion animal, or assistance animal" from the possession of a person named in the order (§ 85.021(1)(C)), and can bar "harming, threatening, or interfering with the care, custody, or control of a pet" in a protected person's care (§ 85.022(b)(7)).

Premarital agreements

A prenuptial agreement can change these rules for the couple who signed it. Family Code § 4.006(a) makes one unenforceable only if the challenging spouse proves that they "did not sign the agreement voluntarily," or that it was unconscionable when signed and they received no fair disclosure of the other's finances, did not waive disclosure in writing, and could not reasonably have known. Whether an agreement is unconscionable "shall be decided by the court as a matter of law" (§ 4.006(b)). An agreement cannot reduce a child's right to support (§ 4.003(b)).

After the decree

The division is final. Under Family Code § 9.007(a), a court "may not amend, modify, alter, or change the division of property made or approved in the decree." Later orders can only help carry it out or clarify it.

Property the decree missed can still be divided. Either former spouse can sue to divide property "not divided or awarded to a spouse in a final decree" (§ 9.201(a)). Since September 1, 2025, the court that granted the divorce keeps continuing, exclusive jurisdiction over those suits (§ 9.201(c)). There is a deadline. Family Code § 9.202(a):

(a) A suit under this subchapter must be filed before the second anniversary of the date a former spouse unequivocally repudiates the existence of the ownership interest of the other former spouse and communicates that repudiation to the other former spouse.

Frequently asked questions

Is Texas a 50/50 divorce state?

No. Texas is a community property state, but Family Code § 7.001 requires a division that is "just and right," not necessarily equal. Courts often divide the community estate roughly equally, but they can award one spouse more when the circumstances justify it.

Is an inheritance community property in Texas?

No. Property acquired by gift, devise or descent is separate property under § 3.001. But income it earns during the marriage is generally community, and you must prove the separate character by clear and convincing evidence.

Does adultery affect property division in Texas?

It can. Texas allows fault-based divorce, and courts may consider fault when making a just and right division. The statute doesn't list fault as a factor; the practice comes from court decisions.

Who gets the house in a Texas divorce?

It depends on whether it is community or separate property and on the just and right division. A house bought during the marriage is presumed community. A house owned before marriage stays separate, subject to any reimbursement claim for community money spent on it.

How is a 401(k) divided in a Texas divorce?

The part earned during the marriage is community property and is divided in the just and right division. A qualified domestic relations order is usually needed, and the divorce court keeps jurisdiction to issue one later.

Can property be divided after the divorce is final?

Only property the decree didn't divide. A suit to divide it must be filed within two years after the other former spouse clearly repudiates your interest and tells you so. The division the decree did make cannot be changed.

Who gets the dog in a Texas divorce?

Pets are property in a Texas divorce, divided with everything else. No statute sets a special standard.

Where these sections live

• Family Code § 3.001–3.003 — Separate and community property
• Family Code § 3.402 — Reimbursement
• Family Code § 4.006 — Enforcing a premarital agreement
• Family Code § 7.001 — Just and right division
• Family Code § 7.009 — Fraud on the community
• Family Code § 9.201–9.202 — Dividing property after the decree
• Texas Constitution art. XVI, § 15 — Separate and community property