Separate Property vs. Community Property

Married couples often amass significant property throughout their relationship. If they decide to legally end their marriage, they must go through the process of dividing their assets. It is not uncommon for divorcing couples to disagree as to how assets should be distributed between them, and they will often ask the courts to resolve such disputes. Not all property is treated equally in Texas divorce actions, though, and it is important for anyone considering ending their marriage to fully understand their marital-property rights. If you have questions about how courts regard separate property versus community property in divorce actions, you should speak to an attorney as soon as possible. The seasoned Dallas divorce lawyers of McClure Law Group are adept at helping people protect their interests in divorce actions, and, if you hire us, we will gather the evidence needed to provide you with a strong chance of a good outcome.

In Texas divorce actions, property is either considered community property, which means it is owned equally by both spouses, or separate property, which is the sole property of one spouse. The Texas Family Code (the “Code”) establishes each party’s rights with regard to property and dictates how property should be characterized. Specifically, the Code dictates that any property that either party obtains during a marriage is presumed to be a community asset. Property includes not only real property but also income, personal belongings, motor vehicles, retirement funds, and any other type of asset. A spouse disputing that an asset is community property must prove that it is separate property by producing evidence that is both clear and convincing. In other words, the evidence must be compelling enough to produce a firm conviction or belief that the allegations asserted are true.

The Code defines separate property as property a spouse claimed or owned before the marriage; assets obtained by one party through a gift, descent, or devise; and damages awarded in personal injury lawsuits, notwithstanding compensation for the loss of the party’s earning capacity during the marriage. Parties can also define property as separate through pre-marital or post-nuptial agreements. Although it is not mandatory, a party that has separate real property allows them to record an acknowledged and subscribed schedule of their separate property in the deed records of the county in which they live or where the property is located.

Pursuant to the Code, the courts will divide community property in a manner that they deem just and right, in consideration of the rights of the parties and any children they had during the marriage. Separate property is not subject to division. If either party obtained property while living in another state, including assets obtained in exchange for personal or real property, the courts treat said property as they would if it was acquired in Texas. In other words, if an asset that a party gets out of state would be considered community property if they lived in Texas during the acquisition, the courts will consider it community property. In some cases, parties will have mixed assets, meaning a single asset that is a combination of separate and community property. In such instances, the courts will evaluate how and when a party initially obtained interest in the property when determining how to make a fair division.

Property division is often a source of contention in divorce actions, and it is important for anyone faced with the end of their marriage to understand their rights with regard to separate property versus marital property. If you or your spouse wish to end your marriage, it is wise to speak to an attorney about how divorce may impact you financially. The assertive Dallas lawyers of McClure Law Group can advise you of your options and help you take the steps necessary to protect your interests. We regularly represent people in divorce actions in Dallas, Rockwall, Fort Worth, Frisco, Irving, McKinney, Richardson, and Garland. We also help people with family-law cases in cities in Dallas, Rockwall, Collin, Denton, Tarrant, and Grayson Counties. You can contact us by calling 214.692.8200 or using our online form to set up a confidential consultation.