How does the Court divide property and debts?

The short answer is that the Court usually divides the community property and debts in a "just and right" manner. This does not mean that the Court divides the property and debts 50/50. This also does not mean that the Court routinely divides the property and debts 70/30. What is "just and right" is inherently subjective and does not lend itself to an exact formula. The Court decides on a division that it deems appropriate on a case-by-case basis.

In Texas, the Court can only divide the "community property and debts." Many cases involve property that one spouse had before the marriage or that one spouse received as a gift or inheritance during the marriage. If the party can prove a specific amount of property to be from a gift or inheritance, or that the property preceded the marriage, that spouse may be able to prove that the property is separate property, and then the Court cannot divide that sum between the spouses.

Each spouse has a separate estate in addition to the community property estate. Sometimes spouses have "reimbursement" or "equitable contribution" claims when one marital estate, for example the husband's separate property estate, owes a sum to another marital estate, such as the community property estate. This could be, for example, because the community property funds were used to pay the mortgage for the husband's separate property real estate. Reimbursement and equitable contribution claims can become highly complex at times but if present may impact the "just and right" division of the community property.

In some circumstances, one or both parties may also ask for a "disproportionate share" of the community property estate due to extenuating circumstances such as, for example, fault in the breakup of the marriage, the difference in earning potential of the spouses after the divorce, or the separate property one party will retain after the divorce. If the Court finds that an award of a disproportionate share is appropriate, the Court will tilt the division farther away from a 50/50 division.