Couple signing divorce papers.

Differences Between Separate and Community Property

Property division is a big issue in most Texas divorces. In fact, this tends to be one of the most contentious subjects that couples must address during the Texas divorce process. When a couple decides to file for divorce, all the property that was brought into the marriage by each spouse and all the property that the couple acquired during the marriage must be divided. But before the court can divide property between the spouses, it must first classify the property. Property in Texas is classified as either separate or community. Below is an overview of separate and marital property in Texas. 

What is Separate Property? 

Separate property is property that was owned by a husband or wife prior to marriage. It also includes certain types of property acquired during marriage, such as gifts and inherited property.

Separate property can not be divided by the court without the parties agreement and continues to belong to the spouse that originally acquired it.

What is Community Property?

Community property is all property acquired by either spouse during the course of the marriage other than separate property. Community property is owned equally by both spouses and is divided between them during the divorce process. Examples of typical community property includes things like family vehicles, the family home, bank accounts, vacation properties, art work, collectibles, and musical instruments. In addition, Texas law classifies some products of separate property as community property, such as cash dividends from investments held as separate property and the fruits, profits, and revenues of any separate property.

Community Property Presumption

In Texas, there is a presumption that all property owned by a married couple at the time of divorce is community property unless there is clear and convincing evidence that proves the property meets the above definition of separate property. This presumption often leads to complex property division problems during the divorce process, such as determining whether title to certain property was obtained prior to or during the marriage. And if either spouse claims that certain property acquired during marriage is separate property, he or she must overcome the statutory presumption that the property in question is community property. In addition, the spouse who makes a separate property claim must provide the court with clear and convincing evidence that the asset in question is actually separate property.

This can cause complex issues especially when you are looking at investment accounts, bank accounts and other financial assets. If you had a 401(k) or IRA prior to your marriage, the gain in value of the asset may or may not be separate property, depending on how it is classified. An experienced divorce lawyer can help you to determine what portion is separate property and what is community. 

Contact Our Denton County Property Division Lawyer

Property division can be a contentious issue in Texas divorces. Therefore, if you are seeking a divorce in Texas, you need an experienced and aggressive property division attorney on your side. In addition to handling all the details of your divorce, our experienced Denton attorney will negotiate on your behalf during the property division process, working hard to ensure that you come away with a property division agreement that is reasonable and just. Please contact us today for a consultation.