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Community Property and Separate Property Laws in Texas Divorce

Sep 27, 2021 | Divorce, Property Division

In Texas, the division of the assets is under a community property system. The community property system has a constitutional base. The following forms of martial property ownership found in common law states have never been part of Texas law: dower, curtesy, tenancy by the entirety, and surviving spouse’s right of election to take a forced share of the deceased spouse’s estate.

Community property is the standard way of dividing the marital property in Texas. There are two categories of property in a Texas divorce. Community property and separate property.

Additionally, in Texas, a spouse’s separate property consists of (1) property owned or claimed by the spouse before marriage; (2) property acquired by the spouse during marriage by gift, devise, or descent; or (3) recovery for personal injuries sustained by the spouse during marriage, except any recovery for medical expenses and loss of earning capacity during marriage.

3.002 of the Texas Family Code defines community property simply as “…the property, other than separate property, acquired by either spouse during marriage.” Section 3.003 of the Texas Family Code provides that all property possessed by either spouse is presumed to be community property at the time of divorce or annulment.

In general, community property is any property acquired during the marriage. On the other hand, separate property is any property acquired by the spouse during marriage by gift, device, descent, or property acquired before marriage. There are exceptions to the separate property estates. For example, any income from separate property is community property. Meaning, if a spouse has a rental property considered separate property, any income from that property is considered community property.

There are four additional definitions of community and separate property worth mentioning. (1) Agreement between the spouses by a written agreement signed by both parties. In agreement, spouses (or future spouses) may partition or exchange all or part of their community property. (2) Gifts to other spouses are presumed to include all of the income or property that might arise from that gift. (3) Tracing principle, which means that assets purchased with a separate property are themselves separate property (4) Quasi-Community Property which is property acquired in another state, which would have been classified as community property if acquired under the circumstances while domiciled in Texas, is treated the same as community property for purposes of division on divorce.

In a Texas divorce, a form called Inventory and Appraisement (“I&A”) is usually the standard to classify property. When you hire an attorney, your attorney will have you fill out an I&A form. This form will begin the analysis of dividing the community property to have an accurate idea of what properties are up for division. It is imperative to hire an excellent attorney to help you with the division of the property in a divorce.

If you are facing a situation where you want to hire an attorney to help with your divorce – you need to speak with an experienced family lawyer. The lawyers at the Skillern Firm, led by Board Certified Attorney Matthew A. Skillern, can help you navigate this issue and answer any questions you may have. If you would like to speak to someone about your particular situation, call our office at (713) 229-8855 and speak to one of our experienced Family Lawyers. We are here to help you as we have helped many others.

* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today.