Understanding Marital and Non-Marital Property

Blog, Divorce Attorney

Divorce AttorneyAre you considering divorce in Dallas? Whether you get divorced in Dallas or elsewhere in Texas, it is critical to understand how the Texas Family Code will classify your assets and debts, and how it will divide them as part of your divorce proceeding. As you might already know, Texas is a “community property” state. There are two types of property in the state of Texas: community property (also known as marital property, or property of the marriage or the community), and non-marital property (also known as separate property). You may encounter the terms “marital property” and “non-marital property” because they are commonly used to describe property in states that are not community property states, but rather are “equitable distribution” states.

What is important is you have the background information you need to understand how your property will be handled in a Texas divorce.

Learning About the Differences Between Community and Separate Property

Under Texas law, community property “consists of the property, other than separate property, acquired by either spouse during the marriage.” In other words, what the Texas Family Code describes as community property is marital property, including both assets and debts from the marriage.

In Texas, there is a presumption of community property. The court will presume any property owned by either of the spouses at the time of the divorce is community property – unless the spouses can show otherwise. To prove a certain asset or debt is separate (or non-marital) property, the spouse seeking to prove that will need to prove it by “clear and convincing evidence.” The standard of “clear and convincing evidence” is a heightened burden of proof. In fact, the spouse who wants to prove a particular property is separate will need to provide more evidence than he/she would need, merely to meet the “preponderance of the evidence” (or more than 50 percent) requirement that the property is not community property. The evidence demonstrating the property is separate property must prove the classification by the higher standard of clear and convincing evidence.

What is separate property? According to the Texas Family Code, separate property can include:

  • Property owned by either spouse prior to the date of the marriage;
  • Property acquired by either spouse during the marriage through a gift (from a third party) or through an inheritance; and/or
  • Recovery from a personal injury claim during the marriage.

Division of Community Property

Why would a spouse need to prove a certain property is separate or non-marital property? It is because the court will only divide community property (or marital property) during a divorce. Community property is divided in a manner the court decides to be “just and right” to both spouses. However, situations can arise where certain elements of separate or non-marital property are taken into consideration in the division of property.

It is also important to know that, in some situations, community and separate property can become “commingled,” or mixed. In these scenarios, the court will try to trace out the portions of separate and community property, but if they are indelibly intertwined, the court may decide all the property should be classified as community property and divided.

Contact a Dallas Divorce Lawyer

If you have questions about marital and non-marital property, a Texas divorce lawyer can help. Contact Orsinger, Nelson, Downing and Anderson, LLP for assistance.