When a marriage ends in Texas, the question most clients ask is: “Who gets what?” Texas is a community property state — but community property is not the same as equal property.
The Community Property Presumption
Under the Texas Family Code, all property acquired by either spouse during the marriage is presumed to be community property — owned equally by both spouses regardless of whose name appears on the title or account. This presumption is powerful and automatic. It applies to wages, business income, retirement contributions made during the marriage, investment gains, and most other assets accumulated from the date of marriage to the date of divorce.
For clients, this means that a spouse who stayed home to raise children has the same legal claim to marital property as the spouse who earned every dollar of it. Texas law treats the marriage as an economic partnership, and the division of that partnership’s assets is the central task of any divorce proceeding.
Separate Property: The Exception That Requires Proof
Not all property is community property. The Texas Family Code recognizes separate property as property that belongs solely to one spouse and is not subject to division. Separate property includes:
- Property owned before the marriage
- Property received as a gift, even during the marriage
- Inheritances received by one spouse, even if received during the marriage
- Personal injury compensation for pain and suffering (though not lost wages or medical expenses, which are community)
Under Texas law, the burden of establishing separate property rests on the spouse claiming it, and that burden must be met by clear and convincing evidence. In practice, this means documentation: bank statements, deeds, inheritance records, and gift letters going back years or even decades. Without that paper trail, courts will apply the community property presumption.
Commingling — mixing separate funds with community funds — is one of the most common and damaging mistakes clients make. Depositing an inheritance into a joint checking account, for example, can make the entire account balance vulnerable to the community property presumption unless meticulous tracing can be performed.
Call Jane Gekhman at (940) 222-6014 if you are going through a family law matter. We can help.