law-divorce-property-division
DIVISION OF MARITAL PROPERTY ESTATE
In a divorce decree, “the court shall order a division of the estate of the parties . . . having
due regard for the rights of each party.” Tex. Fam. Code Ann. § 7.001. In making its
division, the trial court may not divest one party of his separate property. See Cameron v.
Cameron, 641 S.W.2d 210, 215 (Tex. 1982); Osborn v. Osborn, 961 S.W.2d 408, 414
(Tex. App.—Houston [1st Dist.] 1997, writ denied). Indeed, divestiture of separate property
by the trial court is contrary to the Texas Constitution. See Cameron, 641 S.W.2d at 213;
Anderson v. Anderson, 282 S.W.3d 150, 155 (Tex. App.—El Paso 2009, no pet).
Separate property commands constitutional stature: All property, both real and personal, of
a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or
descent, shall be the separate property of that spouse.” Tex. Const. art. XVI, § 15;
Zagorski, 116 S.W.3d at 316. Only community property is subject to the trial court’s just
and right division. Osborn, 961 S.W.2d at 413-14.
To disturb a trial court's division of property, the appellant must show the trial court clearly
abused its discretion by a division or an order that is manifestly unjust and unfair. See
Evans v. Evans, 14 S.W.3d 343, 345-46 (Tex. App.-- Houston [14th Dist.] 2000, no pet.).
Under this abuse of discretion standard, the legal and factual sufficiency of the evidence
are not independent grounds of error, but are merely relevant factors in assessing whether
the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.--
Houston [14th Dist.] 1996, no writ). The trial court does not abuse its discretion when it
bases its decision on conflicting evidence or when some evidence of a probative and
substantive character exists to support the division. Id. at 787.
PROPERTY DIVISION IN DIVORCE - APPEALS
In a divorce decree, the trial court “shall order a division of the estate of the parties in a
manner that the court deems just and right, having due regard for the rights of each party.”
Tex. Fam. Code Ann. § 7.001 (Vernon 2006). To disturb the trial court’s division of
property, Graves must show the trial court clearly abused its discretion by a division or an
order that is manifestly unjust and unfair. Sharma v. Routh, 302 S.W.3d 355, 360 (Tex. App.
—Houston [14th Dist.] 2009, no pet.); Stavinoha, 126 S.W.3d at 607. Under this abuse of
discretion standard, the legal and factual sufficiency of the evidence are not independent
grounds of error; they are relevant factors in assessing whether the trial court abused its
discretion. Sharma, 302 S.W.3d 360; Stavinoha, 126 S.W.3d at 608.
We must remand the entire community estate for a new division when we find reversible
error that materially affects the trial court’s just and right division of the property because
only the trial court may make a just division of community property. Stavinoha, 126 S.W.3d
at 608; McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App.—Houston [1st Dist.] 1995,
writ denied). The appellate court determines only whether the trial court abused its
discretion in making the division. McElwee, 911 S.W.2d at 189.
TEXAS SUPREME COURT CASES
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, 10-20-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court.
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