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The rules for division of marital property upon divorce appear simple at first glance, but a closer review of Texas marital property laws reveals a web of statutes and cases packed with nuance and exceptions to the general rules.
You should always ask an experienced divorce attorney questions about the extent and characterization of your property when planning for a divorce. A quick look at some divorce property division basics will give you a working vocabulary for your discussions with your attorney.
Community Property is all property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other.
Separate Property is all property, both real and personal, a spouse owned or claimed before marriage, and that acquired afterwards by gift, devise, or descent.
- Only community property is subject to division upon divorce.
- All Property existing at the time of divorce is presumed to be community property and is subject to division by a family court judge.
- The burden of proof is on the spouse claiming property to be his or her separate property to show by clear and convincing evidence the property falls within the separate property definition.
So, at the outset of your Texas divorce, you should presume that everything you have is going to be classified as community property unless you have “clear and convincing” proof that you owned the property before marriage, or that you received the property as a gift, or that you inherited the property, or that you were awarded a judgment for personal injuries.
What if you inherited $10,000 from your dead uncle and put the money in your joint bank account where you and your wife routinely deposit your paychecks? Your inheritance can lose its separate property status if it becomes so “comingled” with other community property that it cannot be segregated out. You may be able to employ a technique called “tracing” to recover your separate property interest.
What if you own farmland prior to marriage and after marriage you grow crops on the land? Is the revenue from the crop yours alone or is it subject to division by the court? The crop is community property and subject to consideration and division by in a Texas divorce court.
What if your wife owned a home prior to marriage and after the marriage you two remodel the home? Do you have a claim to the house because of your hard work? No, the house continues as separate property of the wife. You may be able to seek “reimbursement” for the work you did on the house.
And the interpretation of these seemingly simple rules goes on and on. When contemplating divorce in Texas, talk with an experienced divorce attorney to fully know your rights as to both your community and separate property.