To understand marital property division in Texas, you have to look at it from two perspectives. Is the property in question, community property or it is separate property? In Texas, we apply the community property rules for property division, which means any property acquired by the individuals during their marriage is assumed to be common property of both of them and it has to be shared equally.
What is the Presumption?
The Court presumes ALL property held by the parties at the tie of a divorce filing is presumed to be community property. If the part is in fact separate property, then the party making that claim has the burden to prove that to the court. This can be done through tracing the origins of the property to show that it was owned before marriage or falls into one of the other categories of separate property. Need more details or explanation, contact us, a good Richardson marital property Lawyer can advise you on your specific facts, 972-372-4926 or email@example.com.
What is 'separate' property?
- Owned prior to marriage
- Received by gift
- Received by descent (inheritance)
- Or funds used to compensate for personal injuries
Any property owned by either of the individuals before their marriage is separate property. Proof of ownership will need to be presented to establish the time-line of ownership. Deeds, account records, legal recordings or contracts are all types of evidence used to prove the date the property was acquired.
Legal documents showing inheritances or other funds or property received through descent is evidence of the items not being community property. This also accounts for property that was received during marriage through descent.
Gifts can be proven by evidence of the property transfer including notes, letters, and testimony of the person who transferred the gift and the recipient. The court will be looking at the circumstances, relationships and prior gifts between the two individuals which can help support the claim of specific property to be claimed as separate property of the individual.
Recoveries by either spouse for personal injuries during the marriage is the separate property of that individual. It is important to note that lost wages awarded for time during the marriage are characterized as community. This makes it imperative to document and trace back through the judgment or agreements to determine what the funds were intended to address.
How does the Court address separate property?
The court cannot award one spouse's separate property to another spouse. However, as stated above, it is the burden of the individual making the claim of separate property to prove it as separate property. The Texas Family Code specifically requires judges to look at all property as community property, unless it is proved through clear and convincing evidence that it is otherwise. This is where it can get complicated because the burden of proof is quite high.
How is community property divided?
Community property is all property determined to be separate property of the individuals. This will apply regardless of whether one of the couple has his or her name only on a property. All community property is to be divided in a 'just and like' manner'. Typically, all such property will be divided 50/50, but depending the facts of your case, the court could split this unequally to effectuate a just and right division.
For example, there is a provision for disproportionate division (not a 50/50 division). If the divorce is the fault of one of the spouses (committing adultery or being cruel to his or her partner), the judge may go for disproportionate division. Another reason for disproportionate division could be, one of the spouses is earning significantly more than the other (only one of the spouses is earning, the other is staying at home).