One of the major difficulties that accompany a divorce is determining how to divide a couple’s property and debts between the two parties. In community property states such as Texas, a judge dividing a couple’s property begins with the assumption that everything the couple has acquired during the marriage, they own jointly.
Texas statutes define community property as “property, other than separate property, acquired by either spouse during marriage.” This includes income each spouse earns. Separate property is property that each spouse owned prior to the marriage. Unless the spouses agree otherwise, in a Texas property division the court will generally divide the community property equally between the spouses and each party will keep his or her separate property.
Determining Community and Separate Property
The court first needs to distinguish what is community property and what is separate property prior to dividing the couple’s assets.
- Community property: all earnings by both parties during the marriage and everything either party acquired with those earnings; debt acquired during the marriage is also community unless the debt collector specifically seeks one spouse’s separate property for satisfaction of the debt
- Separate property: everything each spouse owned prior to the marriage, inheritances or gifts given to only one spouse during the marriage, pensions that vested prior to the marriage; anything purchased with separate property funds remains separate property
- Mixed community and separate: property that the couple purchases with a combination of community and separate funds is mixed community and separate property and the spouse seeking to show that there is a separate property interest in the property has the burden of showing that interest; if a spouse owned a business prior to the marriage the business is separate property but any expansion of the business is community property.
Dividing up property during a divorce can be complicated and stressful. It can be burdensome to try to prove ownership of something prior to the marriage or prove how marital funds were used to acquire property. If you are going through a divorce contact an experienced Texas family law attorney who can protect your interests during the property division process.