PROPERTY DIVISION IN TEXAS DIVORCES
- Community Property Presuption
The trial court must divide the parties estate in a just and right manner, having due regard for each partys
rights. Tex. Fam.Code Ann. § 7.001 (Vernon 2006); Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex.1981);
Barnard, 133 S.W.3d at 787. We may not reverse a trial court's property division absent an abuse of
discretion. Murff, 615 S.W.2d at 698; Barnard, 133 S.W.3d at 787. Only community property may be divided,
however; a court may not divest a party of his or her separate property. Eggemeyer, 554 S.W.2d at 141-42;
Barnard, 133 S.W.3d at 789.
Property possessed by either spouse during or on the dissolution of the marriage is presumed to be
community property. See Tex. Fam.Code Ann. 3.003(a) (Vernon 1998); Barnard, 133 S.W.3d at 789.
Whether property is community or separate is determined by the facts that give the property its character,
and the party who asserts that property is his or her separate property must prove its separate character
with clear and convincing evidence. See Tex. Fam.Code Ann. 3.003(b); Barnard, 133 S.W.3d at 789; Boyd
v. Boyd, 131 S.W.3d 605, 612 (Tex. App.-Fort Worth 2004, no pet.).
To overcome the presumption of community property, the burden is on the spouse claiming certain property
as separate to trace and clearly identify the claimed separate property. Estate of Hanau v. Hanau, 730 S.W.
2d 663, 667 (Tex. 1987); Barnard, 133 S.W.3d at 789-90. Tracing involves using evidence showing the time
and means by which the spouse originally obtained possession of the property to establish the separate
origin of the property and how the spouse claimed the asset. Boyd, 131 S.W.3d at 612; Ganesan v.
Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.-Austin 2002, pet. denied). The characterization of property is
determined by the inception of title to the property. Boyd, 131 S.W.3d at 612. Inception of title occurs when
a party first has a right of claim to the property by virtue of which title is finally vested. Sharma, 302 S.W.3d
The Texas constitution provides that property a spouse acquires after marriage by gift or devise is that
spouse's separate property. Tex. Const. art. XVI, § 15; Tex. Fam.Code Ann. § 3.001(2); Sharma, 302 S.W.
3d at 360.
When deciding whether the division of the property is just and right, we consider every reasonable
presumption in favor of the trial court’s proper exercise of discretion in dividing the community estate. See
Murff, 615 S.W.2d at 698. To aid in our decision, we engage in a two pronged inquiry: “(1) did the trial court
have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application
of that discretion?” Garza v. Garza, 217 S.W.3d at 549. “We then consider whether, based on the
evidence, the trial court made a reasonable decision.” Id.
“[T]he party complaining of the trial court’s division has the burden of demonstrating that it was so unjust as
to constitute a clear abuse of discretion.” In re Marriage of Palacios, No. 07-08-0006-CV, 2009 WL
1653453, at *1 (Tex. App.—Amarillo June 10, 2009, pet. denied) (citing Frommer v. Frommer, 981 S.W.2d
881, 814 (Tex. App.—Houston [14th Dist.] 1998, pet. dism’d)). Because it is presumed the trial court
properly exercised its discretion in dividing the community estate, it must be shown from the record that the
division was so disproportionate it constituted an abuse of discretion. Grossnickle, 935 S.W.2d at 836; see
also Murff, 615 S.W.2d at 698. We consider every reasonable presumption in favor of the trial court’s
proper exercise of discretion in dividing the community estate. See Murff, 615 S.W.2d at 698.
To reiterate, the trial court may consider: (1) the spouses’ capacities and abilities; (2) benefits which the
party not at fault would have derived from continuation of the marriage; (3) education; (4) business
opportunities; (5) relative physical conditions; (6) relative financial condition and obligations; (7) disparity of
ages; (8) size of separate estates; (9) the nature of the property; and (10) disparity in the spouses’ income
or earning capacity. Murff, 615 S.W.2d at 699.
TEXAS SUPREME COURT MARITAL PROPERTY DIVISION CASES
Pearson v. Fillingim, No. 10-0013 (Tex. Jan 14, 2011)(per curiam)(divorce property division dispute)
In this dispute over the division of property in a divorce decree, we must decide whether the trial court impermissibly
reclassified an asset originally divided in a 1981 divorce decree. For the reasons expressed below, we hold that it did.
The trial court lacked jurisdiction to alter the original divorce decree, and the court of appeals erred in affirming the trial court’s
declaration that the deeds were Dan’s separate property. Accordingly, and without hearing oral argument, Tex. R. App. P.
59.1, we reverse the court of appeals’ judgment and render judgment dismissing Dan’s claims for want of jurisdiction.
RITA LACKEY FILLINGIM PEARSON v. WILLIS DAN FILLINGIM; from Hemphill County; 7th district (07-08-00144-CV, ___
SW3d ___, 03-24-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument,
the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion [6-page opinion in pdf]
View Electronic Briefs in 10-0013 PEARSON v. FILLINGIM
Chu v. Hong, No. 06-0127 (Tex. Mar. 28, 2008)(Brister)(family law, divorce, property transfer to third parties,
fraud on community by spouse not actionable as independent tort, no double recovery)
WILLIAM CHU v. CHONG HUI HONG; from Tarrant County; 2nd district (02-04-00279 CV, 185 S.W.3d 507,
The Court reverses the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court.
TEXAS COURTS OF APPEALS CASES ADDRESSING PROPERTY DIVISION IN
09‑0551 CLAIRE STANARD PHILLIPS v. TROY D. PHILLIPS; from Dallas County;
8th district (08‑06‑00171‑CV, ___ SW3d ___, 03‑26‑09, pet. denied Oct 2009)
(divorce property division, characterization of property, constructive fraud, offset reimbursement claims)
09-0689 JIMMY ZAMARRIPA v. SYLVIA ZAMARRIPA; from Fort Bend County;
14th district (14-08-00083-CV, ___ SW3d ___, 06-30-09, pet. denied Oct. 2009)(divorce marital property
law, dispute over characterization and division of retirement benefits, separate vs. community
property, presumption of community property not rebutted, QDRO)
ELIZABETH W. BUFKIN v. EDWARD O. BUFKIN, JR.; from Dallas County; 5th district (05-06-01719-CV, 259
SW3d 343, 07-01-08) 2 petitions, pet. denied Nov. 2008)
(prejudgment interest reversed, admissibility of expert testimony, divorce fault grounds, prenup, stipulation
MOHAMMED MALEKZADEH v. REBECCA MALEKZADEH; from Harris County; 14th district
(14-05-00113-CV, ___ S.W.3d ___, 07-03-07, pet. denied May 2008) as reinstated
(family law divorce case, separate property, visitation denial)
BETSY RUTH MAGNESS v. CHARLES DANIEL MAGNESS, III; from Kaufman County; 5th district
(05-06-00451-CV, 241 S.W.3d 910, 12-20-07, pet. denied May 2008) (divorce property, characterization of
property, separate property, community property) as amended
HERVE F. GENTILE v. PATRIZIA E. GENTILE; from Aransas County; 13th district
(13-04-00167-CV, ___ SW3d ___, 02-01-07, pet. denied) as redrafted
(enforcement of property division in divorce, ADR, MSA)
BETSY RUTH MAGNESS v. CHARLES DANIEL MAGNESS, III; from Kaufman County; 5th district
(05-06-00451-CV, 241 S.W.3d 910, 12-20-07, pet. denied) (divorce property, characterization of property,
separate property, community property) as amended
In one issue in this divorce proceeding, appellant challenges the trial court's characterization of certain real
property as one-half her separate property and one-half appellee's separate property. We affirm the trial
court's ruling. * * *
The trial court, as the fact finder, is the exclusive judge of the credibility of the witnesses and the weight to
be given to their testimony. Prague, 190 S.W.3d at 37. The trial court was free to disbelieve any or all of
appellant's testimony. Cardwell v. Cardwell, 195 S.W.3d 856, 859 (Tex. App.-Dallas 2006, no pet.). Thus,
the trial court could have concluded appellant did not establish fraud, accident, or mistake in the execution
of the deed and, therefore, failed to rebut the presumption of a gift to appellee.
The trial court did not abuse its discretion in awarding appellee one-half of the home as his separate
property. Therefore, we affirm the trial court's judgment.
LORI DAWN COLEMAN v. MILBURN LEE COLEMAN; from Jefferson County; 9th district
(09-06-00171-CV, ___ SW3d ___, 06-21-07, pet. denied March 2008) (family law, divorce property division)
Appellant Lori Dawn Coleman appeals the division of property in this divorce case, the trial court's denial of
her motion for new trial, and the provision in the divorce decree holding her responsible for her own
attorney's fees. We affirm.
LARRY RAY TAYLOR v. LULA M. TAYLOR; from Tarrant County; 2nd district (02-05-00435-CV, ___ SW3d
___, 08-31-07, pet. denied Feb 2008) (divorce appeal, property division)