Q: How does Texas divide property in divorce?

A: Texas is among a small number of community property states. Community property states distinguish between separate property and community property. Property that constitutes separate property is set out in the Texas Family Code and case law. Everything that is not separate property is community property. Divorcing spouses keep all of their separate property. Community property, on the other hand, is divided between the spouses.

Q: What property constitutes separate property?

A: The Texas Family Code limits separate property to

• property the spouse owned before marriage;
• property acquired through gift, devise, or descent; and
• recovery for personal injuries, unless the recovery is for loss of earning capacity.

Q: Which types personal injury damages are separate property?

• Damages based on a loss of consortium are separate property. Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).
• Damages based on a parent’s mental pain and anguish at the wrongful death of a child are separate property. Johnson v. Holly Farms of Texas, Inc., 731 S.W.2d 641 (Tex.App.—Amarillo 1987, no writ).
• Recovery for medical expenses during the marriage and recovery for loss of earning capacity during marriage are community property. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972).

Q: What if I move to Texas from an equitable distribution state?

A: As long as the couple divorces in Texas, Texas treats the property as if the couple had always lived in Texas.