Division of property is a critical part of all divorce proceedings, one that is frequently responsible for much of the stress during a divorce. States have varying laws regarding property division, recognizing different terms and different ways that marital property must be divided. The Texas family court recognizes community property and separate property, distinctions that divorce attorneys must help couples understand. The best way to make division of marital property less stressful is for couples to work with their lawyers who are experienced with the divorce process to reach an agreement regarding community and separate property.

Texas is A Community Property State

Texas is a community property state; however, divorce attorneys realize that many people do not understand what that means in terms of the division of marital property as part of a divorce. There is a misconception that community property means all marital assets will be divided 50/50, which is not true. The idea of community property in Texas is one of assumption, meaning that unless otherwise designated as separate property, assets are presumed to be community property and subject to equal division or as designated by the courts. Understanding the difference between separate property and community property is key to the proper division of property during a divorce.

What Is Separate Property?

Lawyers who help clients during a divorce advise that separate property is any property that was previously owned by one spouse before  marriage as well as a gift or inheritance received by one spouse after the marriage. Any item that can be proven to belong to, or was gifted to, one spouse is considered the separate property of that spouse. This also includes income that was earned by one spouse before marriage, capital gains on separately owned property, personal injury awards before or during the marriage, and other specific, individually-owned assets.

What Is Community Property?

Community property in Texas is presumed to be all marital property, other than what can be proven to be separate property. Divorce attorneys affirm this means that if ownership of certain property is contested by a spouse, it is up to the spouse who claims to own the property to prove it is their individual property; it will otherwise be considered as community property. This includes income earned by either spouse during the marriage, property bought by either spouse with income earned during the marriage, capital gains on community property purchased during the marriage ,and dividends earned on any separate property during the marriage.

Marital and Personal Gifts

Gifts to one spouse are normally considered separate property; however, a gift made to both spouses, such as a marital gift, is looked on as community property since the gift was intended for both spouses. When dividing other gift property, intent plays an important part of the decision. In other words, a gift made to one person yet used by the couple may still be recognized as separate property.  Conversely, a gift technically made to the couple or family, regardless of which spouse uses or has that property, is usually viewed as community property.

Some personal property in Texas is easily divided during discussions between divorcing couples and their divorce lawyers. Other property, especially income gained from investments, gifted property, and other complicated property may require further discussions and determination as to whether it is actually separate or community property. Division of marital property can be a stressful part of a divorce; however, divorce attorneys recommend that couples work together when designating separate property and agreeing on the division of community property. It will make the entire divorce process that much easier for all involved parties.

Foreman Family Law, PLLC

309 North Washington Avenue, Suite 12

Bryan TX 77803

(979) 217-6279

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