What Is Considered Marital Property vs. Separate Property in Texas?
Dividing property during a divorce can quickly become one of the most stressful parts of the process. In Texas, understanding the difference between marital property and separate property is critical. How your assets are classified directly affects what each spouse is entitled to when the marriage ends.
Here’s what you need to know about how Texas law defines and divides property in a divorce.
Texas Is a Community Property State
Texas follows community property rules. That means most assets and debts acquired during the marriage are presumed to be jointly owned regardless of whose name is on the account or title.
However, not all property is considered community. Some assets are classified as separate property, and those typically remain with the original owner after divorce.
What Is Marital (Community) Property?
Marital property, also called community property, includes most of the assets and debts acquired by either spouse during the marriage. Examples include:
Income earned by either spouse
Homes, vehicles, and other property purchased during the marriage
Retirement contributions and investment accounts funded while married
Debts taken on during the marriage (even if only in one spouse’s name)
Substantial hotel or airline reward points
Even if an account or property is in just one spouse’s name, if it was acquired during the marriage, it’s likely community property.
What Is Separate Property?
Separate property is not subject to division in a Texas divorce. It includes:
Assets owned by either spouse before the marriage
Inheritances received by one spouse (before or during the marriage)
Gifts given specifically to one spouse
Personal injury settlements (excluding compensation for lost wages)
To keep separate property from being divided, the spouse claiming it must prove its separate nature with clear and convincing evidence, which often includes financial records or documentation tracing the asset back to its source.
What About Mixed or Commingled Property?
Property classification isn’t always clear-cut. In many cases, separate and community property become commingled, making them harder to distinguish. For example:
If one spouse owned a home before marriage but both spouses paid the mortgage after marriage, a portion of the equity may be considered community property.
If separate property funds are deposited into a joint account and used for marital expenses, they may lose their separate status unless properly traced.
This is where things can get complicated and why it's important to work with an attorney experienced in property division and tracing.
How Is Marital Property Divided in Texas?
Texas law calls for a “just and right” division of community property, not necessarily a 50/50 split. Courts consider factors like:
Each spouse’s earning capacity
Contributions to the marriage (including homemaking)
Fault in the breakup of the marriage
Future financial needs
Separate property, on the other hand, is not divided and remains with the original owner.
Protecting What’s Yours
Understanding what counts as marital vs. separate property is essential when going through a divorce in Texas. Clear documentation and experienced legal guidance can make a significant difference in protecting your financial future.
At LDG PLLC, we help individuals navigate the complexities of property division in Texas divorces. Whether you’re concerned about protecting your separate property or ensuring a fair distribution of community assets, our team is here to advocate for you.