A courts ultimate responsibility is to divide the property in a manner that the court deems just and right. The vast majority of divorce's in Texas are settled between the parties and never go before a Judge or jury. Of the cases that do go to trial most of them are tried before a Judge. There are significant benefits by having your case decided by a Judge, as opposed to a jury. The biggest advantage is cost. It's generally significantly less expensive to have a Judge try your case as opposed to a jury, the difference is so great that it is almost cost prohibitive to try a case before a Jury.

Texas Judge's have broad authority when it comes to dividing property and rarely will their judgments be overturned on appeal as long as they use some guiding legal principle in dividing the property. A common misconception is that the court must divide the property 50/50. This is not true. As stated before a court must only divide the property in a just and right manner. The court will also divide debt that has accumulated between the parties and incorporate that division into the property division. Almost without exception the court will require an Inventory and Appraisement, sometimes called an "Inventory" that each party will file with the court prior to trial. Once the inventory is completed and filed, the next step is to prepare a proposed property division for the Judge. The court can not divide the property without some evidence as to the value of the property. Evidence that can show valuing of property can come from expert testimony, the parties inventory's, the parties own testimony and financial statements. When there is a disagreement over the value of property, generally a court is within its discretion to value the property somewhere between the parties own valuations. But a court must value the property based upon some evidence presented to it, a court can not value property at a value where there has been no evidence presented to substantiate that valuation. Parties can testify as to the value of their own property, even though that party may not qualify as an expert to value someone else's property, but that party's testimony must be based on "market value" of the property and not replacement cost or other intrinsic value. Parties must demonstrate that they have at least some basis of knowledge.

CHARACTERIZATION

Possibly the single biggest determination during a divorce is how to characterize marital property. There are two general types of property in Texas. Community property and separate property. If property is determined to be the separate property of one spouse, then the Court does not have authority to divest that party of that property. (But the court can use separate property as a basis in dividing property). Community property can be divided by the Court. There is a general rule that property acquired prior to the marriage, inherited or given to one spouse during the marriage is the separate property of that spouse. Generally any property accumulated during the marriage is considered community property. There is a presumption that all property owned by a party at the time of divorce is community property and that a party alleging he or she owns separate property has the burden to convince a court otherwise. 

There is another avenue for characterizing property as the separate property of one spouse. Any money that was earned prior to divorce is separate property. If that same money is used to purchase property during the marriage then that property that was purchased with separate property funds is also considered separate property. As long as the spouse alleging separate property can trace the money to the property purchased, without surmise or speculation" then the separate property claim will hold. "Without surmise of speculation" can be conceptualized as what most people would call a paper trail.

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