BACK TO BLOG September 23, 2019

What Is Community Property and Separate Property In Texas Divorces?

When going through a divorce in Texas, you may have heard that Texas is a “community property state.” But, what does that mean?

Stated simply, community property is anything acquired, purchased, or received during the marriage. The concept is that any of these items belong to the “community” or both parties to the marriage.  That is the stuff that will be split during the divorce.

Separate Property is the property owned by one spouse which he/she acquired: a) before marriage, b) by inheritance, c) as a gift, d) assets traceable to other separate property such as money received from sale of a house owned before marriage, and e) property the spouses agree is separate property. Separate property is not split up during the divorce.

So, how do Texas family lawyers tell the difference between community property and separate property in a Texas divorce?

The Community Property definition is very broad by design and the party claiming Separate Property must rebut the Community Property presumption. Texas family courts begin with the presumption that any property at the time of divorce is community property. That means it is presumed to be community property unless someone can show otherwise.

If there is a dispute over whether something is separate property, the person wanting the property to be separate property has the burden of showing that the property is separate property. Typically, that person can bring receipts, pictures, or other evidence to show the stuff was received prior to the marriage or otherwise qualifies as separate property. In some instances, it can be difficult to overcome the community property presumption.

Another common issue in Texas divorces happens when community money is used to pay for the care, maintenance, or ownership of the separate property. This is commonly seen with houses and automobiles that were purchased prior to the marriage. For example, if a spouses earnings are used to pay for the mortgage and taxes on a house that the other spouse purchased prior to marriage, the non-owning spouse would be entitled to an offset for the equity in the house built during the time of marriage.

A significant amount of litigation generally arises when one party seeks to claim items (particularly money) as separate property. And more litigation arises when one spouse is seeking an offset