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Texas Community Property vs Separate Property

by | Sep 18, 2019 | Divorce

As the divorce process begins, the question of how to divide their property and what property is considered their own and what is shared arises. Property can generally be divided into two categories, community property and separate property. Sometimes it can be a hybrid of these two. 

  • Community property is defined as all the property that either spouse acquired during the marriage, except for separate property. 
  • Separate property is defined as anything one spouse owned prior to marriage, property inherited by only one spouse, property received as a gift by only one spouse, and recoveries for personal injuries sustained by only one spouse, except for the portion of the award intended to compensate for lost earnings during the marriage.


What does the law say?

The Texas Family Code says that property possessed by either spouse during or on the dissolution of marriage is presumed to be community property. The decree of proof necessary to oppose the community property assumption, and establish that it is separate property, is called clear and convincing evidence. Clear and convincing evidence means something that will create a firm belief or conviction that the property is actually separate property. A few examples of clear and convincing evidence includes inheritances and properties bought prior to the marriage, such as a home or car.


What does this mean?

The plain wording in the Texas Family Code creates a rebuttable assumption that all property possessed by spouses when their marriage is dissolved is their community property. It imposes the burden upon spouse asserting otherwise to prove the contrary by clear and convincing evidence where the evidence is conclusive. The general rule is that a spouse must clearly identify property claimed as separate property. When the evidence shows the separate and community property have been so combined or comingled, the burden is not met . Then all the property is considered community property. There are tracing rules which may allow the separate property to still be established. 


Separate property will stay as separate as long as the party asserting separate ownership can clearly trace back to when they acquired the property. Any doubt as to the character of property will likely be resolved in favor of the community estate.  


Potential issues?

An issue that may come up is whether mineral rights were separate or community property at the time of divorce decree. For example, a spouse has claimed the mineral rights were a gift from their parents. The spouse then has to prove those mineral rights were their separate property to deny the community property claim. To do so, they must trace and clearly identify the property in question as separate by clear and convincing evidence. If the spouse does not attend the final divorce hearing, much less offer proof that the property interests are their separate property, the spouse does not rebut the community property presumption by clear and convincing evidence.


To keep your relationship amicable, it is key to have open and honest discussions with your spouse while figuring out how to divide your properties. Educating yourself beforehand about what qualifies for separate and community properties can help make that process trouble-free. 


At the Law Office of Tim Whitten, we truly care about our clients and their well-being. We believe in a collaborative approach that reduces the emotional and financial stress by offering alternative options to resolving their disputes, such as collaborative law or mediation. Our goal is to help folks resolve their family law issues in a way that protects their interests and preserves their family ties.

If you are in need of an experienced family law attorney and you believe that our philosophy may work for you, contact The Law Office Of Tim Whitten, P.C. We are dedicated to helping you and your family move forward peacefully. Call 512-478-1011 to speak with our firm today.

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Family Focused.
Solution Oriented.