Texas property characterizations and what they mean for your divorce  

We know there are many questions that come to mind when a relationship is ending, including, “In a Texas divorce, who gets the house?” Divorcing couples have asked this question so frequently that it’s become cliché. But… who does get the house?

The fact that many don’t know the answer to these questions points to a greater confusion about how to split property in Texas after a divorce. It doesn’t help that there are different kinds of property and that the way that property is dolled out is dependent upon where you’re getting your divorce.

You already have so many things to consider during a divorce, and sadly, divorces often become messy. A spouse might be lying about income to avoid child support, or you might need to enlist a Houston custody lawyer for fairness in regards to children.

Before you give up on ever seeing your house (or car, or dog, or TV) again, learn about the difference between marital, separate and community property and what these distinctions can mean for a Texas divorce agreement. 

How is property divided in a divorce in Texas? Understanding “separate property” in a divorce. 

Splitting property in a Texas divorce can seem as clear as mud. For example, imagine looking down the barrel of these scenarios in the middle of a contentious split with your ex-spouse.

  • I inherited a farm from my grandmother; does my ex-spouse own part of that? 
  • My wife and I bought a car together — I paid for it, but we used her name on all the paperwork; who does our sexy, red Corvette belong to?
  • My wife had higher earnings than I did during our marriage; how destitute is my bank account looking, exactly?

The first step to answering questions like these is to figure out which parts of your property are considered separate property and which are considered marital property.

In Texas, your property is considered separate property if: 

  • You inherited it or received it as a gift (both before of after marriage)
  • You owned it prior to marriage
  • You received the recovery for personal injuries sustained during your marriage (except for recovery for the loss of your earning capacity during marriage)

So, that means that the spouse of the person who inherited the farm in the above example will not be raising chickens and growing corn anytime soon.

It also means that the answer to the question, “In a Texas divorce, who gets the house?” would still not be clear cut as separate property for many people.  

Marital property in a Texas divorce

Generally, anything that is not separate property in a Texas divorce is marital property (although the two can get mixed up). Going back to the examples above, that means that the Corvette and wife’s income are assets earned and used by both spouses after marriage, so those assets are marital property.

Even separate property can become marital property if it becomes commingled. Commingling takes place when assets become so mixed up with each other that it’s impossible to tell what belongs to whom.

For example, say a wife inherits $10,000, which is technically considered separate property. But then she adds the money to the bank account she shares with her husband. They both draw upon the account and add to the money, and pretty soon, no one can make heads or tails of who has taken away more or contributed more to the $10,000. That $10,000 is now considered marital property.

Marital property is obviously a much, much bigger category than separate property, so it should come as no surprise then that states have different ways of handling how that property is split. 

You’ll notice that our original question of a Texas divorce and who gets the house wasn’t exactly answered. That’s because while the majority of states are what’s called common property states, Texas is one of 9 states that are considered community property states (some states use a mix of both common and community property states)

How is community property divided in Texas? 

Texans are known for their hospitality, and, for better or worse, the “what’s mine is yours” mentality is what characterizes the splitting up of property in community property states. In other words, marital property in Texas is one in the same with community property, and community property is split 50/50 between the two spouses. 

Unless it is written out and agreed upon that property obtained during a marriage is separate property, it is presumed that all property obtained during a marriage is community property.

So, in Texas, even though the divorced husband’s name wasn’t on any of the Corvette’s paperwork, he’s still entitled to “half” of the car — it wouldn’t qualify as separate property in a Texas divorce. 

So, who usually gets the house in a divorce? 

Technically, both parties get half. However, unless you and your ex hash out a civil chainsaw and demolition plan to literally split the house, someone has to get it.

Knowing that, some considerations must be made. If someone used separate money to pay for the down payment on the house — perhaps they even bought the house before marriage — the house might be theirs. By the same token, if the house is theirs in a Texas divorce, the outstanding debt on the house might be theirs as well.

True to form in Texas divorces, this debt would raise more questions! For example, how is debt divided in a Texas divorce? If the other spouse contributed to ongoing mortgage payments of said house, but not the down payment, they might receive a greater share of other marital property.  

Avoid splitting hairs over splitting property 

So again, with the “In a Texas divorce, who gets the house?” riddle, the best answer is: it depends! Even if you think you know the characterization of your property, these riddle-like problems still crop up, and when they do, it’s best to have a good Houston divorce attorney by your side.

Even if your divorce is an amicable, no-fault divorce, the process of dividing up property can get heated. If your divorce isn’t amicable, it only gets worse. 

It’s imperative that you hire an attorney who has real courtroom experience and can make sure that what’s yours winds up in your hands. Taly Thiessen combines trial-tested battle strategies to deliver strong representation during your divorce or custody hearing. To start preparing your case, schedule your consultation today.


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