Property Division: Separate Versus Community

In Texas, the characterization of property as separate or community can be a battleground for divorcing spouses.

I am attorney Leonard M. Roth. As a divorce lawyer certified in family law by the Texas Board of Legal Specialization, 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.

What Is Separate Property?

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.

What Is The Difference Between Community And Separate Property?

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, for example, 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 you to prove that the property is separate property through clear and convincing evidence — 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 a number of factors, such as:

  • Earnings potential
  • Education
  • Health of the parties
  • The amount of separate property each spouse has
  • Fault in the breakup of the marriage
  • 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, you may be entitled to a reimbursement of that contribution during the distribution of community property. Find out more about reimbursements in a Texas divorce.

Get Advice About Marital Estate Distribution

Email or call me today at 713-965-7608 today for help with property division in a Texas divorce. I serve clients in Houston and all surrounding communities.