In Texas, three marital estates may exist: the community estate, the wife’s separate property estate and the husband’s separate property estate. The Court may confirm, but may not divide, a party’s separate property estate.
If the parties are unable to reach an agreed division of their community property, the Court will make a just and right division of that property upon divorce. Notice that I did not say a 50/50 division. Unlike some other states, a 50/50 division is not mandatory in Texas. This means that the Court, for different reasons, may award one party more than 50% of the community estate.
All of the property owned by the parties at the time of divorce, regardless of when it was acquired, is presumed in Texas to be community property. A party who desires to have property confirmed as his or her separate property, and not divided by the Court, upon divorce, has the burden to rebut the community property presumption. One common way to rebut the community property presumption is through use of the inception of title doctrine and tracing.