UNDERSTANDING THE DIFFERENCE BETWEEN COMMUNITY PROPERTY AND SEPARATE PROPERTY IN A TEXAS DIVORCE

Community vs. Separate Property

Texas defines community and separate property. Community property “consists of the property, other than separate property, acquired by either spouse during marriage.” Moreover, the statute tells us that “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” If you plan to claim that property acquired during the marriage is not community property you must present “clear and convincing” evidence why the property should be treated as separate property.

Certain types of assets, however, are treated as separate property even if the asset was acquired during the marriage. Separate assets and debts remain the property/responsibility of the owner in a Texas divorce. Separate debts are debts that you, or your spouse, incurred prior to the marriage, while the following assets are examples of separate property for the purpose of the division of assets in a Texas divorce:

• Property owned or claimed by one spouse before the marriage.
• Property received as a gift or inheritance to one spouse during the marriage.
• Money received by one spouse for personal injuries that occurred during the marriage (not including money received for lost wages or medical expenses).
• Stock dividends and capital gains on the separate property investments of one spouse.

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