- For Attorneys
In Texas, upon divorce the court's function is to enter a "just and right division" of the parties' property. There is no set formula or calculation for doing such. The court is limited generally by the type of property involved, it classification as to the nature of the property, and what the judge determines is a just and fair division.
The classification of the property is divided into two basic types. These are named: "separate property" and "community property." The court may never divide separate property, but must award it to the person who proves the property is his or her separate property. However, the court may consider the amount, extent and nature of each of the parties' separate property in dividing the parties' community property ( -- among other things such as fault in the breakup of the marriage, and the relative earning abilities of the parties to name but two).
Separate property is defined as:
(1) property owned prior to the time of the marriage; or,
(2) property acquired at anytime by gift or inheritance; or,
(3) recoveries for personal injuries sustained at anytime (but lost wages which are recovered which would have been earned during the marriage are community property); or,
(4) property exchanged for any property defined by nos. 1,2 or 3 above.
Number one above is relatively easily understood. If you owned something prior to the marriage, it is your separate property. This will not help you much since you and your ex-wife bought the property jointly before you were married.
Number two is also relatively easily understood. If someone gave you something as a gift, or if you inherited anything during the time of the marriage, it is your separate property.
Number three is somewhat more complicated. Recoveries for personal injuries sustained at anytime are considered separate property of the person who sustained the personal injuries. However, any recovery of wages (salaries, hourly wages, bonuses, etc.) which would have been earned during the time of the marriage is considered community property and subject to division upon divorce since this is money which would have been community property.
Community property is everything which is not "separate property." Regardless of whose name may be on the title, deed, insurance policy, share of stock or bank account -- to name but only a few things of property -- it is presumed community property and, unless this presumption is disproved by the other spouse, the property will be divided upon divorce.
Community property is often defined as property obtained or acquired by either of the parties during the time of the marriage -- as long as that property is not acquired by gift, inheritance, an award for personal injuries, or a mutation of other separate property. This includes wages earned, salary, bonuses, and any other thing of value received.