Property Division

Houston, Texas, Property Division Lawyer

In Texas, the characterization of property as "separate" or "community” can be a battleground between divorcing spouses. As a board-certified family law attorney, I can help you understand the distinction, protect your separate property rights, and maximize your share of the community property in the event of divorce.

In Texas, separate property is property that you had before marriage and still have in some form. Separate property can be transformed. For example, if you had $50,000 in stock prior to marriage, and you sold $10,000 of that stock, the $10,000 proceeds would be separate property. If you applied the $10,000 cash as an initial escrow payment on a house, the house would be your separate property.

During marriage, if you acquire something by direct gift from anyone, that gift is your separate property. If you inherit money or property, that is your separate property as well. If you are injured in an accident and you receive a personal injury settlement or verdict for "pain and suffering or bodily injury damages" that is also your separate property. Of course, these items of separate property can be transformed as well.

All other property accumulated from the date of your marriage until the date of your divorce is community property and is subject to division by the court. Employee benefits such as stock options and pension plans acquired during marriage are community property and are divisible. Even your time is a part of the marital estate in Texas. For example, if you trade your separate property stocks during your marriage, and those stocks appreciate in value, the appreciation may be found to be community property.

The process of proving the "separate" character of property is called tracing. When separate property changes from stock, to cash, to a boat, every step must be proven by documentary or testimonial evidence. If your spouse doesn't stipulate that your property is separate, it can be very expensive and difficult to prove. Texas courts require "clear and convincing evidence" that the property is separate property—the highest standard of proof under civil law.

Dividing Community Property

Husbands and wives in Texas each have an equal right to community property during marriage. However the instant someone files for divorce, that idea goes out the window. The court will divide community property in what is known as a just and right manner, and this may not be—and probably will not be—an equal split. The court will look at such factors as earnings potential, education, health, the amount of separate property each has, fault in the breakup of the marriage, and a number of other factors in determining what is just and right. Rather than 50-50, the split may be 55-45 or any other percentage the court decides.

If you make a separate property contribution toward community property (for example, if you contribute $10,000 in separate property toward repairs of a community property home), you will be entitled to a reimbursement of that contribution during the distribution of community property and that particular reimbursement will be dollar-for-dollar. If it were community money benefiting separate property, it would not be dollar-for-dollar since part of the community property is already yours.

Contact me today if you are looking for a board-certified family law attorney who will provide you with experienced counsel with regard to community and separate property. I serve clients in Houston, Texas, and all surrounding communities.