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What You Should Know About Separate vs Community Property in Texas

by | Jul 2, 2017 | Divorce

In Texas, a married couple’s property is separated into community and separate property. In the instance of divorce, this distinction is important to determine which spouse keeps which properties. Separate property belongs to one spouse and is not divided between spouses in a divorce, while community property is considered to belong to the married couple, and may be divided in divorce.

WHAT IS SEPARATE PROPERTY?

A spouse’s separate property consists of:

  • Property owned or claimed by the spouse before marriage;
  • Property acquired by the spouse during the marriage by gift or by inheritance; and
  • The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during the marriage.
WHAT IS COMMUNITY PROPERTY?

Community property is the property, other than separate property, acquired by either spouse during the marriage. Property the was acquired by either spouse during or on dissolution of marriage is presumed to be community property. The requirements of proof necessary to establish that property was separate property is clear and convincing evidence. Otherwise it is assumed to be community property.

GIFTS BETWEEN SPOUSES

If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property. “Generally speaking, one who is claiming the existence of a gift has the burden of proof. However, where the conveyance is from one spouse to the other spouse, there is a presumption of gift. A gift by one spouse to another can be set aside if the gift was induced by duress or undue influence. In such a case, the burden of proof rests with the recipient to show that the gift was fair and equitable.” Roberts v. Roberts, (Tex. App.—El Paso 1999, no pet.)

PROPERTY INTEREST IN CERTAIN INSURANCE PROCEEDS

Insurance proceeds paid or payable that arise from a casualty loss to property during marriage are characterized in the same manner as the property to which the claim is attributable. If a person becomes disabled or is injured, any disability insurance payment or workers’ compensation payment is community property to the extent it is intended to replace earnings lost while the disabled person is married. To the extent than any insurance payment or workers’ compensation payment is intended to replace earnings while the disabled or injured person is not married, the recovery is the separate property of the disabled or injured spouse.

Separate Property in a marriage versus Community Property can be a sticky wicket. Good record keeping and clear evidence that property was held separately and that it was not co-mingled with the community property will help to establish that the property is truly separate. For more information on this subject, you can contact Tim Whitten at 512-478-1011 or via the form below.

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512-478-1011

7500 Rialto Blvd., Bldg. 1
Suite 250
Austin, TX 78735
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Family Focused.
Solution Oriented.

Family Focused. Solution Oriented.

Resolving family law matters while preserving family relationships.

Family Focused. Solution Oriented.

Our goal is to help folks resolve their family law issues in a way that protects their interests and preserves their family ties. Most family law cases can be difficult from an emotional and financial perspective. We believe in reducing the emotional and financial stress by offering alternative options to resolving their disputes, such as mediation. We enjoy helping people who are interested in working together to find creative solutions to their circumstances.

We provide a variety of services to clients from all walks of life. We offer both full-scope and limited-scope representation so that you may choose the way you want to allocate your resources. We are open to exploring alternative fee arrangements, in appropriate cases. Contact us to inquire.

Helping You Pursue Alternative Conflict Resolution Methods

Too often clients in family law cases spend substantial sums of money arguing about issues in court and often feel worse at the end of their case than before they started. At The Law Office Of Tim Whitten, P.C., we are sensitive to this reality. This is why we explore alternatives to the traditional litigation approach with each client as we help him or her identify long-term legal interests and goals. After our representation begins, we strive to be available and responsive to each client to ensure that we stay on track with that client’s interests and goals.

Contact the Law Office of Tim Whitten

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.

MORE THAN 25 YEARS OF PROFESSIONAL EXPERIENCE

Our primary attorney, Tim Whitten, is certified as a Family Law Specialist by the Texas Board of Legal Specialization. This means that he has experience in multiple case types, demonstrated proficiency, and mastery in some of the technical aspects of family law.

Contact Us Today

For a Confidential Consultation

Contact Us

512-478-1011

7500 Rialto Blvd., Bldg. 1
Suite 250
Austin, TX 78735
Map + Directions

Family Focused.
Solution Oriented.