Legal Question in Family Law in Texas

Generally property accrued before the date of marriage is separate property in Texas and not subject to division in a divorce. However, in Texas there is a presumption that all property within the marital estate is community property subject to equal division. That means it will be up to the wife, in this case, to properly petition the court to retain her separate property interests in the 401k plan (and any other pre-marital assets) and prove to the court with clear and convincing evidence that the pre-marriage 401k benefits are her separate property. As an aside, any portion of the 401k plan accrued after the date of marriage will be community property subject to a just and right division.