What is the Difference Between Community Property and Separate Property in a Texas Divorce?

Every part of divorce is difficult, but figuring out who gets what can make your head hurt. You’ve worked hard for what you have, and you want to make sure you walk away with your fair share.

In Texas, we recognize two types of property in divorce: community and separate. Knowing which assets are “yours, mine, or ours” is the first step to ensuring you’re protecting what’s rightfully yours.

Texas is a Community Property State

Texas is one of nine community property states in the United States. This classification is rooted in Texas Constitution Article XVI, Section 15, which establishes the separate property of spouses, and the Texas Family Code Chapter 3, which further defines community property.

According to Texas Family Code § 3.002, community property is defined as “the property, other than separate property, acquired by either spouse during marriage.” This means that generally speaking, all property acquired during the marriage is presumed to belong equally to both spouses, regardless of who earned it or whose name is on the title.

But this doesn’t automatically mean a 50/50 split of all assets in a divorce. Texas Family Code § 7.001 mandates that the court shall order a division of the estate in a manner that the court deems “just and right,” which may not always be an equal division.

What Counts as Community Property in a Marriage?

Community property in Texas includes:

1. Income earned by either spouse during the marriage
2. Property purchased with income earned during the marriage
3. Retirement benefits accrued during the marriage
4. Debts incurred during the marriage

The Texas Supreme Court has consistently upheld the community property presumption. Community property includes not just assets but also debts. This means that both spouses are generally equally responsible for debts incurred during the marriage, even if only one spouse’s name is on the account.

What is Separate Property?

Separate property, in contrast to community property, belongs solely to one spouse and is not subject to division in a divorce. Texas Family Code § 3.001 defines separate property as:

1. Property owned or claimed by a spouse before marriage
2. Property acquired by a spouse during marriage by gift, devise, or descent
3. Recovery for personal injuries sustained by a spouse during marriage, except for recovery for loss of earning capacity

Keeping separate property truly separate can be difficult. If separate property is commingled with community property, it may lose its separate character and become community property. It’s like trying to unscramble an egg – once it’s mixed, it’s nearly impossible to separate the yolk from the white.

At Dodson Law Firm, PLLC, our property division lawyers help you make sure that your separate property remains separate and that you receive a fair share of the community assets.

Key Differences Between Community and Separate Property

Timing of Acquisition

The primary difference lies in when the property was acquired. Property acquired before marriage or after divorce is separate, while property acquired during marriage is generally community.

Division in Divorce

Community property is subject to division in a divorce, while separate property remains with its original owner

Burden of Proof

There’s a presumption that all property owned by either spouse during marriage is community property. The burden of proving that a particular asset is separate property falls on the spouse making that claim.

Gifts and Inheritances

Gifts and inheritances, even if received during marriage, are considered separate property unless they’re explicitly given to both spouses.

Personal Injury Settlements

Money received from a personal injury settlement is generally separate property, except for the portion that compensates for lost wages during the marriage.

Appreciation of Property

The appreciation of separate property during marriage can be complex. If the increase in value is due to market forces, it remains separate. However, if the increase is due to contributions of community time, talent, or money, the appreciation may be considered community property.

Key Points to Remember

Properly characterizing property as community or separate is key to getting your fair share in a Texas divorce.

Here are some key points to remember:

1. Prenuptial Agreements: These can change the character of property that would otherwise be considered community property.
2. Commingling: Mixing separate and community property can result in all of it being treated as community property.
3. Tracing: If separate property has been commingled, it may be possible to “trace” it back to its separate source, but this can be a complex process often requiring forensic accounting.
4. Reimbursement Claims: If community funds were used to benefit separate property (or vice versa), the other estate may be entitled to reimbursement.

Protect Your Property Rights in Texas Divorce—Reach Out to Us Today

Knowing what counts as community versus separate property in a Texas divorce can feel overwhelming. At Dodson Law Firm, we’re here to guide you through it. We can help you:

1. Identify and characterize all assets and debts as community or separate property
2. Gather evidence to support claims of separate property
3. Understand your rights regarding both community and separate property
4. Negotiate a fair division of property in your divorce settlement
5. Litigate property division issues in court if necessary

Remember, the characterization and division of property can have long-lasting financial implications. It’s crucial to have knowledgeable legal representation to protect your interests.

If you’re facing a divorce in Texas and have concerns about property division, don’t navigate this complex process alone. Contact Dodson Law Firm today for a consultation. We’ll review your situation, explain your rights, and help you understand your options moving forward.

When it comes to protecting your property rights in a Texas divorce, “Dodson Gets It Done.”