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Community vs. Separate Property in Texas

In a Texas Divorce there are two main types of property that a person can have. Either community or separate property. Of these two types community property is the only type of property that is subject to division by the Court in a Divorce. The following is a basic overview of these two types of property and what makes them either community or separate, but there are a number or exceptions, agreements, and rules that can re-characterize the property based on the specific facts of your case. Further, under Texas law only community property can be divided and awarded by a Court, separate property remains the property of the person who's separate property it is.

Let’s start with community property. The basic definition of community property is any property that is acquired or brought in during the marriage. This includes income, anything bought with community funds during a marriage including a house or car, or any other property that may have been at one time separate but there is no longer an ability to trace the property’s origin to prove that it is separate. Most property acquired during a marriage is community property and therefore subject to division by the Court during a Divorce. The Court will attempt to make a “just and right” division of the community property, which is not necessary a 50-50 split depending on the facts of the case.

When it comes to separate property, there are very few things that it can be, however, community property can become one spouses separate property either by gift or by agreement of the parties in an agreement such as a pre-nup. As to what can characterized as separate property the first type of property is anything that is brought into the marriage by one of the spouses. Property brought into the marriage can be just about anything such as a house, a car, a savings account, even down to a fly swatter. However, any income that is made off of separate property is considered community absent an agreement to the contrary. Such as rental income off of a rental house or interest on a savings account. Another major issue is in retirement accounts, the amount that was in the account before the marriage is separate, however any interest or additional money put in during the marriage is generally considered community property.

Anything acquired during the marriage by gift, devise, or descent is separate property. This means any gifts to a single spouse is separate property, even if the other spouse makes the gift. Another possibly thorny area is if someone makes a gift of a piece of real property to both of the spouses, then the property could be owned by each spouse as their separate property as tenants in common with an undivided one-half interest, depending on the language in the deed and the intent of the person making the gift. Also, anything that one spouse inherits during the marriage is separate property, either by a will or through intestacy.

To sum up in general most property acquired during the marriage is community property, absent an agreement or if it was a gift or came from an inheritance. However, this area of Family Law has numerous exceptions that may or not apply to your specific Divorce. Therefore, it is best to get the advice of a lawyer as to the characterization of the property.

Please feel free to contact our office today, at (972) 330-2171, if you have any questions about community or separate property in your Divorce matter.

Byron C. Winborne


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