Do I Get To Keep My Retirement Account During a Texas Divorce?

 Posted on August 22, 2025 in QDROs, Pensions and 401(k)s

When divorce is on the table, many people worry a great deal about retirement savings. Texas is a community property state, so the part of an account earned during the marriage is usually shared by both spouses after divorce. Understanding how Texas treats retirement accounts will help you set goals and make informed choices during settlement talks. An experienced Travis County, TX divorce attorney can explain the laws that govern property division and walk you through how to protect your retirement plan.

Are Retirement Accounts Considered Community Property in Texas?

According to Sections 3.001 and 3.002 of the Texas Family Code, most property gained during marriage is considered community property. Money you put into a 401(k), IRA, pension, or Thrift Savings Plan while married, and the growth on those deposits, is generally community property. By contrast, what you owned before the wedding, along with any gifts or inheritances made to you alone, is separate property. If part of an account existed before marriage and part was built during the marriage, the account is mixed. The spouse who claims a separate share must prove that it is separate by tracing it with statements, rollover records, or other reliable proof. Without clear tracing to show that it was your individual property, a court may treat more of the balance as community property.

How Is a Retirement Account Divided in Texas?

Under Section 7.001, a judge must make a just and right division of the community estate. That does not always mean a perfectly equal split. Courts can consider many factors, including:

• The length of the marriage

• Each spouse’s earning power

• Fault in the breakup

• Each spouse’s health

• Tax implications

• Which spouse will keep other assets or debts

For retirement, courts often award a percentage of the community portion as of a set date, plus any gains or losses until distribution. Employer plans, such as 401(k)s and pensions, usually require a Qualified Domestic Relations Order (QDRO) to carry out the division without triggering taxes or early withdrawal penalties. IRAs do not use a QDRO, but transfers should be made trustee to trustee to avoid taxes and penalties.

Is There a Way To Keep Your Retirement Account After Divorce in Texas?

Often, you can keep all or most of a retirement account during divorce by giving your spouse other community assets of equal value, such as home equity or cash. Some spouses agree to take on more community debt in exchange for keeping more of the retirement funds. If you can prove that part of the account is separate property, that portion stays with you and does not need to be offset. 

Helpful proof includes statements from before the marriage, records of rollovers from premarital plans, and documents showing that you did not commingle new deposits with separate funds. If your retirement accounts were addressed in a prenuptial or postnuptial agreement, the court will likely uphold those arrangements.

Schedule a Consultation With an Austin, TX Divorce Attorney Today

Every divorce is different, and small details can change outcomes in a big way. A local attorney can review your statements, calculate the community portion of your property, prepare the correct orders, and negotiate a settlement that fits your goals. At Powers Kerr & Rashidi, PLLC, our attorneys are board-certified in family law by the Texas Board of Legal Specialization and have been honored as Super Lawyers for many years. 

We also have extensive experience in mediation practice, helping people resolve disputes without costly litigation. If your future is tied up in retirement savings, get clear advice now. Contact our Austin, TX divorce lawyers at 512-610-6199 to schedule your initial confidential consultation today.