Texas is a community property state. All property is defined as being either community or separate.
What is Community Property?
All property and debt is presumed to be community property in a divorce case. Community property and debt is divided by the court. Separate property remains the separate property to that person. You have to prove that certain property and debts are separate debts. In a divorce the community property is to be divided by the court in a manner that is "just and right." This doesn’t necessarily mean 50/50, but it usually does.
Community property includes your home, vehicles, furniture, bank accounts, retirement and pretty much anything you bought or acquired during the marriage. It doesn’t matter who paid for it or if it is in one person’s name (like a car). If you got it during the marriage it is almost always community property. The same with debt. It doesn’t matter whose name is on the credit card. It is a community debt.
What is Separate Property?
Separate property is property you had before the marriage, or property you inherited or received as a gift. If he gave you that diamond necklace for your birthday, it is your separate property and he does not have a right to half of it. If he owned the house before you were married then the house is his separate property.
The same with debt. If you had a $5,000 debt before marriage and that debt is still unpaid, then that $5,000 is still just your debt. There are some special rules and exceptions. Let’s suppose that one spouse had a $200,000 house at the time of marriage, but owed $180,000 on it. At the time of the marriage that spouse had $20,000 equity in the house. After ten years of marriage they get a divorce and the mortgage is now down to $100,000. Lets also assume the house is still worth $200,000. Under this scenario, the separate debt of the mortgage has been paid down an additional $80,000. Therefore the separate property now owes $80,000 to the marital estate. Meaning the $80,000 in reduced debt needs to be repaid to the community estate and can now be divided as community property. This can get confusing and only an experienced lawyer and walk you through this process in order to protect your property rights in the divorce.
When can I get more than half of the property? When one party is guilty of certain bad conduct, the court can take that into account when dividing the property and debts. This is not as common as it may seem, especially from movies and tv.