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  • Writer's pictureLindsey Lewis

Who Gets What? Community Property vs. Separate Property

If you are contemplating getting a divorce, you may find yourself wondering whether certain property you possess is subject to judicial division. Property division resulting from a contested divorce proceeding is often a controversial issue and can be extremely frustrating. The information provided below will help you better understand the differences between separate property (which is not subject to judicial division) and community property (which is subject to judicial division).

Before delving into the specific differences between separate and community property, it is important to ascertain what “property” means according to the Texas Family Code. Under this code, “property” is defined as any interest in real or personal property (whether present or future; equitable or legal; or vested or contingent), as well as any related income or earnings.

Texas is a “community property” state. Community property is defined by Texas Family Code §3.002 as consisting of any property: 1) which is not separate property; and 2) which was acquired by the spouses during the marriage. Texas Family Code §3.003 creates a presumption that any property obtained by the spouses during the marriage is community property, which is subject to judicial division upon divorce. This presumption can only be rebutted by a showing of clear and convincing evidence that a specific piece of property is actually separate property and should not be subject to judicial division. This “clear and convincing evidence” standard means that a spouse needs to be able to show in court that it is highly more likely to be true than untrue that a specific piece of property is separate property rather than community property. If the spouse cannot meet this burden, then the piece of property will be considered community property and will be subject to judicial division.

Separate property is property acquired by one spouse and is not subject to judicial division upon divorce. In Texas, separate property consists of the following:

● Any property owned or claimed by a spouse before entering the marriage;

● Any property acquired by a spouse during marriage by gift, devise, or descent; and

● Any recovery for personal injuries sustained by a spouse during the marriage (excluding any recovery for loss of earning capacity during the marriage).

Spouses can also make an agreement between themselves at any time before, during, or after the marriage that a specific piece of property (as well as any income deriving therefrom) will be considered separate property. Conversely, spouses can at any time make an agreement that any property formerly considered separate property should be converted to community property. These agreements will typically be upheld by the court unless: 1) one of the spouses did not sign the agreement voluntarily; or 2) the terms of the agreement are unconscionable, meaning that one of the spouses did not receive a fair and reasonable disclosure of the property or financial obligations of the other spouse.

If you have questions regarding whether property in your possession is considered separate property or community property, please contact The Law Office of Lindsey Lewis at (281) 768-4071 to schedule a consultation today!

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