If you are planning to get divorced in Dallas, Fort Worth or San Antonio, it is important to understand how your assets will be divided in your divorce. Texas is one of only a handful of states that is a “community property” state. In community property states, married couples have joint or equal ownership of most of the assets they acquired after the date of marriage – and certain other assets too. In a Texas divorce, assets will need to be classified either as separate property or community property – and community property is what gets divided between the parties. We will say more about community property and the classification of assets at the time of the divorce and how the court distributes community property between the parties.
Defining and Classify Community Property for Purposes of Division
Before assets can be split during the dissolution of marriage, those assets first must be classified as community property or separate property. Under Chapter 3 of the Texas Family Code, community property “consists of the property, other than separate property, acquired by either spouse during the marriage.” The law clarifies there is a presumption of community property in that “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” If one of the spouses wants assets to be classified as separate property, then the party seeking to prove that those assets should be classified as separate property must “establish that property is separate property [by] clear and convincing evidence.” This is a heightened standard of proof.
What is separate property? The statute explains that the following assets are typically defined as separate property under Texas law:
- Assets owned or claimed by the spouse before the marriage;
- Assets acquired by the spouse during marriage by gift, devise, or descent; and
- Recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.
Chapter 7 of the Texas Family Code further clarifies the following assets will also be classified as separate property:
- Assets acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in Texas at the time of acquisition; and
- Assets acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in Texas at the time of acquisition.
How Community Property is Divided
Sometimes assets can have characteristics of both community and separate property and the court will need to take additional steps to determine how the assets should be classified and whether they are divisible. Once a court does determine what assets are community property, then it will follow the general rule of property division under Texas law:
“In a decree of divorce . . . the court shall order a division of the estate of the parties in a manner that the court deems just and right, have due regard for the rights of each party and any children of the marriage.”
In dividing community property, the court considers a variety of factors to determine what a “just and right” division would look like in a couple’s circumstances.
Contact a Dallas Divorce Lawyer
If you have questions about divorce and the division of community property, a divorce lawyer in Dallas can help. Contact Orsinger, Nelson, Downing & Anderson, LLP for more information.