Community (and Separate) Property in Texas

When a couple chooses to "tie the knot" and marry one another, they may bring many material and monetary possessions into the marriage, especially when a couple marries later in life or after previous marriages. Often a husband or wife will enter the marriage already owning a vehicle, a home, a retirement savings account or other items of value.

The acquisition of possessions, however, does not end once the couple says "I do." Combining incomes can lead to the purchase of bigger homes, vacation properties or small businesses. Additionally, either the husband or wife or both may inherit property or heirlooms or money from parents, grandparents or other family members.

Yet, when a couple decides to untie the knot and file for a Texas divorce, all of the property that was brought into the marriage by the husband and wife and all of the property that the couple acquired during marriage must be divided. In Texas, how the couple's property is divided at the end of the marriage will depend upon how the property is classified. Is it separate property or community property?

texas separate property

Generally, all property that is considered the separate property of either the husband or the wife will not be divided upon divorce and continue to belong to the individual that owns that property.

Typical property that is considered separate property in Texas includes property that was owned or claimed before the marriage and certain types of property acquired during the marriage such as gifts and inheritance, monetary recoveries for personal injuries (except recovery for that person's loss of earning capacity), or property gifted from either the husband or wife to the other.

texas community property

According to Texas law, community property is all property acquired by either the husband or wife or both during the course of the marriage, "other than separate property." All property that is classified as community property is owned equally by the spouses and will be divided between the husband and wife during the divorce process.

While the definition of what constitutes community property is fairly broad - essentially property that is not separate property - included property may be the family house, vehicles, vacation properties, bank accounts and personal-family possessions like art work, musical instruments or collectables. But Texas law also includes the products of separate property such as cash dividends from stock held as separate property and all "profits, fruits, and revenues of separate property."

presumption of community property in texas

Texas law presumes that all property owned by the couple at the time of the dissolution of the marriage is community property unless there is clear and convincing evidence proving the property is separate property. This presumption may create complex issues during the divorce process as the issue may center on determining when title to the property in question was obtained, prior to or during marriage.

If either spouse claims that certain property acquired during marriage is separate property he or she needs to overcome the presumption that the property is community property. The spouse making the claim bears the burden of his or her claim and needs to provide the court with "clear and convincing" evidence that the asset truly is separate property.

division of community property in texas

While Texas law states that both the husband and wife have an equal ownership interest in the owned community property, this does not, however, mean that a divorce court will divide or award the property equally between the spouses during the divorce process. Based on the situation and circumstances of the husband and wife, and that of the marriage, the court may choose to unequally divide the community property (award more of the property to one spouse than the other) between the couple. But, this will only be done if the court finds that it is "just and right" to award and unequal division of property.

When determining a "just and right" marital property division, the court will consider factors such as:

  • The spouse's and children's needs
  • Earning capacity of the spouses
  • Age and health of the spouses
  • Education level of spouses
  • Which spouse will mainly be raising the children

The division of property during the divorce process holds the potential to be very contentious and stressful, especially if high-net worth assets or unique property is involved. Working with an experienced El Paso family law attorney can help you understand what property may be separate property and how to best seek your share of community property during your divorce.