Division of Property in Divorce

When a marriage ends, the division of property in divorce comes down to two questions: what belongs to the marriage, and what belongs to one spouse alone. Texas is a community property state, which means property either spouse acquired during the marriage is generally shared. A judge divides that shared estate in a way that is just and right, and each spouse keeps the separate property they can prove. Whose name is on a deed or account does not settle it.

Prince Contreras PLLC helps spouses in San Antonio and across Bexar County sort out what is in their estate, drawing on more than 50 years of combined experience. When you reach out, you talk with your attorney rather than being handed to a paralegal or associate. Call 210.227.7821 or contact us to schedule a free consultation.

What Counts as Community Property in a Texas Divorce?

Section 3.002 of the Texas Family Code defines community property as property, other than separate property, that either spouse acquired during the marriage. Common examples include:

• The home, vehicles, and other property bought while married
• Wages either spouse earned during the marriage
• Retirement contributions made while married
• A business started during the marriage

Texas law also leans toward the community: property either spouse has during the marriage, or when it ends, is presumed to be community property under Section 3.003 of the Family Code. That presumption puts the work of proving a separate-property claim on the spouse who makes it.

What Stays Separate Property, and What You Have to Prove

Section 3.001 of the Texas Family Code lists three kinds of separate property:

• Property a spouse owned or claimed before the marriage
• Property received during the marriage by gift, devise, or descent, meaning an inheritance with or without a will
• A recovery for personal injuries suffered during the marriage, except any part that pays for lost earning capacity during the marriage

One catch: income that separate property earns during the marriage, such as interest or rent, is generally community property.

Because of the presumption, a separate-property claim needs clear and convincing evidence, proof strong enough to leave the judge with a firm belief that the claim is true. Tracing is how a spouse meets that standard: following an asset back to its source with account statements, deed and closing records, and gift or inheritance paperwork.

Tracing gets harder when separate and community money have been mixed in one account, which is called commingling. An asset that cannot be traced is left with the community presumption, even if it started out as separate. On accounts with a long history, our attorneys work with accountants and other financial professionals when needed to follow the money.

When One Estate Pays for the Other: Reimbursement Claims

A reimbursement claim arises when one marital estate, meaning the community or one spouse’s separate property, pays for something that benefits another, such as community earnings used to pay down the mortgage on a house one spouse owned before the marriage. To recover, the spouse seeking reimbursement must prove each of these points under Section 3.402 of the Family Code:

• That property of one estate was used to benefit property of another estate
• The value of that benefit
• That the benefited estate would be unjustly enriched, meaning unfairly better off, if it did not repay the other

How a San Antonio Judge Decides a Just and Right Division

Section 7.001 of the Texas Family Code requires the court to divide the estate in a manner it considers just and right, with due regard for the rights of each spouse and any children of the marriage. Just and right does not mean 50/50, and a judge can divide the community estate unevenly.

Texas courts have held that a judge may weigh factors such as:

• Differences in the spouses’ income and earning capacity
• Each spouse’s age, health, and education
• The size of each spouse’s separate estate
• Fault in the breakup of the marriage, when a spouse raises it

A spouse who stayed home with the children for years, for example, may receive a larger share of the community estate to offset a much lower earning capacity.

How Are Retirement Accounts and Pensions Divided?

The divorce decree must determine both spouses’ rights in retirement and employment benefits under Section 7.003, whether or not the earning spouse is self-employed.

The part of an account built before the wedding can stay separate property, but only if it is traced back to that period. Dividing an employer plan generally takes a second court order, called a qualified domestic relations order, which tells the plan administrator how to pay the other spouse’s share.

For spouses connected to Joint Base San Antonio, military retired pay can be part of the estate too. Under the Uniformed Services Former Spouses’ Protection Act, a state court may divide retired pay as property, but the Department of Defense enforces that division only when the spouses were married for at least 10 years while the service member performed at least 10 years of creditable service (service that counts toward retirement), known as the 10/10 rule. Military divorce is part of our San Antonio divorce practice, so we can explain how that rule fits your timeline.

What If You Bought Property While Living in Another State?

A home or account left behind after a move to San Antonio from another state or a duty station can still be part of a Texas divorce. Section 7.002 of the Texas Family Code directs the court to treat property a spouse acquired while living in another state as if the spouse had lived in Texas at the time. Property that would have been community property here is divided in the same just and right way, wherever it is located, and property that would have been separate property here is awarded to that spouse as separate property.

What Happens to Your Property While the Divorce Is Pending?

In Bexar County, every new divorce petition must have the civil district judges’ standing order on children, property, and conduct of the parties attached. This order applies automatically, without either spouse asking for it, and takes effect when the petition is filed. It bars both spouses from selling or hiding property, taking on new debt, withdrawing from retirement plans, or changing life insurance beneficiaries without authorization. It still allows reasonable living expenses, ordinary business activity, and attorney’s fees, and it ends when the court signs a final order. For a spouse worried that the other will drain an account, that protection starts on the first day of the case.

How Spouses Can Divide Property Without a Trial

Spouses can sign a written agreement dividing their property and debts under Section 7.006, and it can also address spousal maintenance, meaning court-ordered support paid to a spouse. If the court finds the terms just and right, they bind the court, and the judge can make them part of the final decree. If not, the court may ask for a revised agreement or set the case for a contested hearing.

Either spouse can generally change or back out of an agreement before the divorce is granted, unless it is binding under another rule of law. A mediated settlement agreement, one reached with help from a neutral mediator, is a common exception. Once it carries a prominently displayed statement that it is not subject to revocation and is signed by both spouses, and by any attorney present, it is binding, and either spouse can ask for a judgment on it.

Talk to Us About Division of Property in Divorce

Untangling a shared financial life can feel overwhelming, especially when the records are scattered across years of accounts.

Prince Contreras PLLC can review what you have and explain where each asset is likely to land in the division of property in divorce. Call 210.227.7821 or contact us today to set up your free consultation.