Posted by Mary E. Ramos | Discovery, Divorce
Each state has its own set of laws that govern the division of property during a divorce or dissolution of marriage. Community property is a term for the assets that a married couple owns together. There are nine states that recognize the philosophy of community property, including Texas. Which assets are considered separate or community property is what guides the Texas court systems through the divorce process.
What Qualifies as Community Property in Texas Divorce?
Any asset that was acquired during the marriage is considered community property in Texas. This means that any asset earned or acquired during marriage– be it earnings, retirement accounts, real property, personal belongings, etc – are subject to a just and right division in a Texas divorce. Even if an asset is in one spouse’s sole name, for example, a 401k retirement account or motor vehicle, if it was acquired after the date of marriage then it is considered community property in a Texas divorce.
The nature of community property in Texas divorce does not change no matter who earns the asset or contributes toward the community estate. Even if only one spouse earned community income or all the community assets are under only one spouse’s name, community property law requires that all assets be subject to a just and right division. This means a spouse that never worked or earned substantially less than the other spouse is entitled to a just and right division of the community property.
Assets from Before the Marriage
Any asset that was in existence prior to marriage is not considered community property. An asset that existed prior to the marriage is characterized as separate property.
Separate & Community Property in Texas Divorce
Some property can be characterized as both separate property and community property in a Texas divorce. For example, if a party had money in a retirement account on the date of marriage and continued to contribute after the date of marriage. Then there would be a community property interest and a separate property interest in the same account. Some property, even if acquired during the marriage, cannot be characterized as community property in a Texas divorce. This includes property that was acquired via gift, devise or inheritance. Any assets acquired by those means will remain as that spouse’s separate property.
Proving Separate vs. Community Property
There is a presumption that all property acquired during a marriage is characterized as community property. The burden of rebutting that presumption is on the party claiming the property is separate property. A court cannot divide or award separate property; it can only address the division of community property in a Texas divorce. To prove that an asset is a separate property, a party must be able to prove the date of inception occurred prior to the date of marriage or that it was obtained through gift, inheritance or devise.
Speak With an Expert Attorney
Given the intricacies of the community property system and the importance of preserving all of your community property rights, it is highly advisable that you consult with a licensed Texas family law attorney who has experience in dealing with the division of community property in a Texas divorce. A licensed Texas divorce attorney with experience in dealing with the division of community property will be able to review the details of your estate and provide advice as to a proposed division.
Call Ramos Law Group
If you are considering a divorce in Texas and have assets to divide, please contact the Ramos Law Group to speak with one of our licensed attorneys about your case.
Last Updated on May 23, 2023 by Mary E. Ramos
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