When spouses contemplate divorce, one of the primary questions centers on the division of the property.  The division of property in Texas is a rather complex issue, and understanding the law is a critical component of the decision-making process. Today's blog post will outline the difference between separate property and community property and the role the difference plays in the division of property.

Definitions

In Texas, marital property consists of "separate property" and "community property". Separate property consists of property a spouse (1) owned prior to marriage; (2) acquired during the marriage by gift, devise or descent, i.e. inheritance; and (3) property acquired during the marriage by reason of a personal injury claim (except that portion awarded for lost wages).  Community property consists of all property that is not separate property.

PRESUMPTIONS AND BURDEN OF PROOF

Texas law presumes that all property owned or claimed by either spouse at the time of divorce is community property.  A spouse claiming property is his/her separate property has the burden of demonstrating by "clear and convicing" evidence that the property is separate property.  Often, a clear paper-trail exists to show the character of the property, such as a deed to the house dated prior to the marriage.  

COURT DECISION

When the Judge decides that an item is a spouse's separate property, the Judge has no authority to award the item to the other spouse.  The Judge is required by law to simply confirm the property as the owner's separate property.  

The Judge then is required to determine the value of any and all community property and divide the community property in a "just and right" manner, considering all relevant factors.  Some of the more common factors include overall value of the estate, type of property, spouses' earning and earning potential,  and fault in the breakup of the marriage.  

If you are contemplating divorce, you should carefully evaluate the character, type and value of your assets.  Doing so can help you make a realistic assesment of what type of property division would be reasonable.  Christiansen Law Firm assists clients with the divorce process, including negotiating reasonable property settlements and/or conducting contested trials if necessary.  Christiansen Law Firm's attorneys have significant experience over approximately 20 years helping clients in matters of divorce and property division.  For more information about how Christiansen Law Firm can assist you, call our offices in Houston or San Antonio to schedule a consultation now.