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Barbara L. Jouette, Attorney, P.C.
888-268-7997 / 214-385-4562

What is the effect of community property law in Texas?

You may already be aware that Texas is one of a handful of states that uses community property instead of equitable distribution when it comes to dividing the assets between a couple that is going through a divorce. This post addresses some of the characteristics of community property.

The most salient characteristic of community property law is its presumption that any property acquired during the marriage is community in nature – that is, the spouses share equally in it no matter who brought the property into the marriage. So, for example, a spouse's income earnings during the marriage are considered to be community in nature, or a vehicle paid for by one spouse becomes the community property of both. Separate property owned by the spouse before the marriage remains so, but absent a legally recognized exception to the general rule assets acquired during the marriage are treated as equally owned by both spouses.

Although the general rule of community property is simple, there are some variations to be kept in mind. Some ways that separate property and community property can change from one to the other include: 

  • Separate property that cannot be adequately traced to the sole ownership of one spouse may be considered to be community property upon divorce.
  • Separate property that earns income may have that income considered as community property during the period of the marriage.
  • The spouses can make agreements before during the marriage to treat what would ordinarily be community property as the separate property of one spouse.
  • Separate property that is commingled with community property to the extent that it cannot be separately traced may be treated as community property.
  • A spouse who claims that particular property is separate instead of community in nature bears the burden of proof to establish that claim.

Although this post is not a comprehensive treatment of Texas community property law – and should not be construed as legal advice of any kind – it should be sufficient to make it clear that when entering into a divorce in which questions may arise as to how assets are to be categorized, retaining the assistance of experienced legal counsel can be helpful in clarifying the legal status of such assets and resolving any disagreements that may come up.

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