In Texas divorces—including those filed in Montgomery County—the division of property is not automatically 50/50. Courts apply a “just and right” standard under the Texas Family Code, which means the judge weighs multiple factors to decide what each spouse receives. Understanding the difference between community and separate property, as well as the role of debts, reimbursement claims, and local court practices, can make a major difference in protecting your financial future.
Why Property Division Matters
Divorce involves more than ending a marriage—it requires untangling the financial lives of two people. For many, the division of property is the most complex and emotionally charged part of the process. From homes and retirement accounts to debts and family businesses, every asset must be classified, valued, and allocated.
Montgomery County couples must follow Texas law, which sets unique rules about what belongs to each spouse. Unlike states that use equitable distribution, Texas is a community property state, and that distinction drives how courts divide assets.
Texas Law Governing Property Division
Texas divorce courts operate under specific provisions of the Texas Family Code:
- Section 3.001 – Separate Property: Defines property that belongs solely to one spouse.
- Section 3.003 – Community Property Presumption: All property acquired during the marriage is presumed community unless proven otherwise.
- Section 7.001 – Just and Right Division: Courts divide community property in a manner they consider fair—not necessarily equal.
These statutes form the foundation of every property division case in Montgomery County. Judges must apply them consistently but also exercise discretion based on each couple’s circumstances.
Community vs. Separate Property
The first step in any property division case is determining what belongs to the community estate versus what is separate property.
Separate Property
By law, separate property includes:
- Assets owned before marriage.
- Gifts or inheritances received during the marriage.
- Compensation for personal injuries (except lost wages).
Separate property cannot be awarded to the other spouse in divorce, unless both parties agree otherwise. For example, if one spouse inherited a piece of land, that land remains theirs after divorce.
Community Property
Community property generally includes:
- Income earned during the marriage.
- Real estate purchased by either spouse during the marriage.
- Retirement contributions made during the marriage.
- Businesses formed while married.
Unless there is clear and convincing evidence that an asset is separate, the court presumes it is community property.
The “Just and Right” Standard
Unlike states that simply divide marital property equally, Texas courts divide community property in a way that is “just and right.” This gives judges discretion to deviate from a 50/50 split when fairness requires it.
Factors Courts Consider
Judges may weigh:
- Disparity in earning capacity.
- Health and age of each spouse.
- Fault in the breakup of the marriage (adultery, cruelty, etc.).
- Future financial needs.
- Which parent has custody of children.
- Waste or misuse of community assets.
For instance, if one spouse significantly out-earns the other, the court may award a greater share of assets to the lower-earning spouse.
Reimbursement and Special Claims
Texas law recognizes that property division can be more complex than simply labeling assets as separate or community.
Reimbursement Claims
If one estate benefits another, the disadvantaged spouse may seek reimbursement. Examples include:
- Using separate funds to pay down the mortgage on a community home.
- Community funds improving one spouse’s separate property.
Courts evaluate whether reimbursement is fair and supported by evidence.
Fraud on the Community
If a spouse wrongfully disposes of community property—such as hiding money or giving away assets—the court may reconstitute the estate to ensure fairness.
Retirement Accounts and Pensions
One of the most valuable assets in many marriages is retirement savings. Contributions made during the marriage, whether to a 401(k), pension, or IRA, are typically community property. Courts divide these accounts using a Qualified Domestic Relations Order (QDRO), which ensures compliance with federal regulations.
The bottom line: retirement accounts must be carefully valued and properly divided to avoid future disputes.
Real Estate and Family Homes
The family home is often the most emotionally significant and financially substantial—asset in a divorce. Montgomery County courts may:
- Award the home to one spouse while compensating the other with different assets.
- Order the property sold and the proceeds divided.
- Consider which parent will serve as primary custodian of children when awarding possession.
In Texas, the inception of title rule applies: ownership classification depends on when and how the property was acquired.
Business Ownership and Professional Practices
Dividing a family-owned business or professional practice adds another layer of complexity. Courts must determine:
- Whether the business is community or separate property.
- The fair market value of the business.
- Whether one spouse should continue ownership while compensating the other.
Expert testimony from accountants or valuation professionals is often critical in these cases.
Debt Division in Texas Divorces
Property division isn’t just about assets—it also involves debts. Credit card balances, mortgages, car loans, and business liabilities must be assigned. Courts aim to divide debts fairly, but creditors are not bound by divorce decrees. This means both spouses may remain legally responsible if accounts are jointly held.
Contested vs. Uncontested Divorce in Montgomery
Property division often depends on whether the divorce is contested or uncontested:
- In an uncontested divorce, both spouses agree on property division and submit a settlement to the court. This is usually faster, less expensive, and less stressful.
- In a contested divorce, spouses cannot agree, and the court must decide. This often involves lengthy discovery, hearings, and potentially trial.
For either option, working with a knowledgeable family law attorney can protect your rights and ensure a fair division.
Property Division Process in Montgomery County
Couples filing for divorce in Montgomery County can expect the following steps:
- Filing and Initial Disclosures: Spouses must list assets, debts, and financial records.
- Temporary Orders: Courts may issue orders about who controls property during the divorce.
- Valuation of Assets: Experts may be needed for real estate, businesses, or retirement accounts.
- Negotiation or Mediation: Many cases resolve before trial.
- Court Division: If no settlement is reached, the judge will divide assets and debts in the final decree.
Montgomery County district courts, such as the 418th Judicial District Court, handle these cases and apply Texas family law consistently.
Common Mistakes to Avoid in Property Division
- Failing to distinguish separate from community property. Without proof, assets may be wrongly divided.
- Overlooking hidden or undervalued assets. Proper investigation is crucial.
- Ignoring tax consequences. Some divisions may create unexpected liabilities.
- Not addressing debt liability. Creditors are not bound by divorce decrees.
- Skipping professional advice. Business valuations, appraisals, and QDROs require expertise.
Avoiding these pitfalls can protect long-term financial stability.
How an Experienced Divorce Lawyer Can Help
Dividing property in divorce is a legally and financially complicated process. An attorney can:
- Ensure proper classification of assets and debts.
- Protect separate property rights.
- Identify and pursue reimbursement claims.
- Prevent fraud or concealment of assets.
- Advocate for a fair “just and right” division in court.
At Morgan Bourque Attorney at Law, our team handles complex family law matters across Montgomery County. Whether your case involves straightforward assets or contested property battles, we guide clients through every step.
Conclusion
Divorce in Montgomery County is not just about ending a marriage—it’s about securing your financial stability for the future. Texas’ community property system, combined with the “just and right” standard, means each case requires careful preparation, evidence, and advocacy.
Whether you are considering filing for divorce or are already in the process, you do not have to navigate property division alone. A skilled attorney can protect your rights, clarify your options, and work toward the best possible outcome.
If you are facing divorce and property division in Montgomery County, contact us today or call us directly at (713) 766-6001 to schedule a consultation.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For legal guidance tailored to your specific situation, consult a licensed attorney.