Skip to Content

Can I Get More Than 50% of the Community Property in My Divorce?

Can I Get More Than 50% Of The Community Property In My Divorce in Texas? Short answer: Yes—but there are a number of factors a court will need to consider.

In Texas, community property is the legal principle that presumes all property acquired by either spouse during the marriage belongs equally to both parties, regardless of who earned or acquired it. This means that unless proven otherwise by clear and convincing evidence, all assets and debts accumulated during the marriage are considered community property, subject to division in the event of a divorce.

What Qualifies as Community Property?

Community property typically includes, but is not limited to:

  1. Real estate purchased during the marriage.
  2. Income earned by either spouse during the marriage.
  3. Retirement accounts and pension benefits acquired during the marriage.
  4. Investments, stocks, and bonds purchased with marital funds.
  5. Personal property purchased during the marriage, such as furniture, vehicles, and electronics.
  6. Business interests acquired during the marriage, unless there's a prenuptial or postnuptial agreement specifying otherwise.

Separate Property vs. Community Property

While community property encompasses most assets acquired during the marriage, there are exceptions.

Separate property includes:

  1. Property owned by one spouse before the marriage.
  2. Inheritances or gifts received by one spouse during the marriage.
  3. Property designated as separate in a valid prenuptial or postnuptial agreement.
  4. Proceeds one spouse received in a personal injury settlement.

The Division Process

Texas law requires courts to make a “just and right” division of community property, rather than a strict 50/50 split. You may be able to get a disproportionate share of the community estate based on the following factors:

  1. fault in breakup of the marriage;
  2. the benefits that the innocent spouse would have derived had the marriage continued;
  3. disparity in the spouses’ income and earning capacities;
  4. each spouse’s business opportunities;
  5. each spouses’ education;
  6. physical health
  7. need for future support;
  8. the relative ages of the parties;
  9. each spouse’s financial condition and obligations;
  10. the size of each spouse’s separate estate and any expected inheritance;
  11. the nature of the spouses’ property;
  12. the rights of the children of the marriage;
  13. waste of community assets or constructive fraud against the community;
  14. gifts by one spouse to the other; and
  15. tax implications of the property

In many cases, divorcing couples can reach an agreement on property division through negotiation or mediation, which can provide more flexibility and control over the outcome.

Understanding the principles of community property and the factors that influence division is essential for both parties involved. While Texas law aims for equitable distribution, each case is unique, and it's often best to seek legal counsel to navigate the complexities of property division and ensure your rights and interests are protected during this challenging time.