WHEN IS MARITAL PROPERTY “COMMUNITY PROPERTY” VS. “SEPARATE PROPERTY” IN A TEXAS DIVORCE

What is “community property”?
Under our current law in Texas, community property is property that is owned equally between the spouses. Whether or not “community property” exists depends on the marital relationship of the parties, when the marital relationship was created and when the marital relationship ended. In general, the property acquired by the spouses during the marital relationship is community property subject to a “fair and just” division by the Court with consideration given to the rights of the parties and to any children of the marriage.

What is “separate property”?
The Texas Family Code defines a party’s separate property as follows:
“A spouse’s separate property consists of:
1. The property owned or claimed by the spouse before the marriage;
2. The property acquired by the spouse during the marriage by gift, devise, or descent; and
3. The recovery for personal injuries sustained by the spouse during the marriage, except for any recovery for loss of earning capacity during the marriage.”

All property of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse.

A Texas Court cannot divest a spouse of their separate estate when the Court is dividing the marital estate in a divorce. The Court must award separate property to the party that owns the interest.

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