Many potential clients of the
Law Office of Bryan Fagan come into one of our free of charge consultations to ask one of our attorneys
a question or two regarding
community property. If you are contemplating a divorce you have probably heard of community
property but may not be sure of what it is exactly. Does the law in Texas
mandate that all property that is in the family home at the time of the
divorce is community property? Is there any way that you can claim certain property
as being yours and yours alone? Let’s discuss those issues in this
blog post so you have a better understanding of the issues prior to filing
What is separate property and how is it defined in Texas?
Texas Family Code lays out a definition for
separate property. Separate property is 1) the property owned or claimed by the spouse before
marriage 2) the property acquired by the spouse during the marriage by
gift, devise or descent, and 3) the recovery for personal injuries sustained
by the spouse during the marriage, except any recovery for loss of earning
capacity during the marriage.
Ok, for a lawyer that definition alone might be enough to make sense but
for everyone else living in the real world what exactly does that mean?
Basically, anything you owned prior to being married, anything you got
as a result of a gift from a person or an
inheritance or any money you won in a lawsuit is yours and yours alone. Your spouse
does not have a claim to it should a divorce become a possibility.
Now that we know what separate property is, what does community property mean?
Texas Family Code has a definition for Community Property as any property other than separate
property which either spouse acquires during the course of the marriage.
If you purchased something or came into possession of something during
your marriage and it doesn’t fall under one of the previously discussed
categories for separate property then it is community property.
What comprises separate property and what comprises community property
is an important distinction for us to make at this point in the blog and
will be even more important for you and your attorney to work out during
the course of your divorce. Separate property is not divided up in a divorce,
only community property is. Therefore, if you intend to prove that a piece
of property is in fact separate property rather than community property
you have some work to do.
How to differentiate between community and separate property
If all you knew about community property and separate property were the
definitions and brief examples that I just laid out for you then it may
appear that telling the difference between community and separate property
would be pretty easy to do. I suppose now is as good a time as any to
let you all know that when lawyers get their hands on something it usually
ends up being more convoluted and confusing than it ought to be. The subject
of community vs. separate property in Texas is unfortunately no exception.
Our state has had community property laws on the books for nearly two
hundred years and since then many, many sub-rules have been created that
require modern day lawyers like me to do my best to explain those sub-rules
Property is presumed to be community property
If you or your spouse own property at the time of your divorce that property
is presumed to be community property. That isn’t just a statement
made by me, but rather one of those sub-rules that are now the law in
Texas. This law applies to the little dresser that has your name engraved
on it from when you were a little. The presumption towards community property
must be overcome with evidence that you can present if necessary. Of course,
it is unlikely that your spouse is going to try and fight you for every
item in the home. If there is an item that you know is going to be a fight
when the time comes to either negotiate a settlement or present your evidence
to a judge you and your attorney had better be prepared.
How to establish a piece of property as your separate property
Look to the earliest date at which either you or your spouse are able to
claim ownership of the particular piece of property that is being argued
about. Whichever one of you can claim title or ownership of property will
likely be the person awarded the property in a divorce. If any piece of
land or a home was purchased around the time you and your spouse got married
then it is especially important to figure out your dates as to when the
sale was accomplished.
Another common method to prove the separate nature of a piece of property
is through tracing. Tracing basically means looking at the item that you
purchased prior to the marriage and determining where the funds from the
sale of that property went after the marriage began. As a pretty straightforward
example, if you can prove that the money you used to purchase a piece
of property came from an item that was your separate property that you
sold then you would be in good shape to have that piece of property awarded to you.
The devil is in the details here, however, as it is likely that the money
you got from the sale of property has been mixed up with your spouse’s
income or bank accounts. This is called “co-mingling”. Unless
you have kept immaculate records of each deposit and withdrawal made into
your jointly held bank accounts it will be extremely difficult to prove
one way or another where the money came from and how it was spent. In
short, be prepared to hire an expert on forensic accounting of some similar
field if this will be a similar issue to one you face during your own divorce.
Community Property is Important in a Divorce. So is hiring the right Family
Law Office of Bryan Fagan represents clients across southeast Texas and are no strangers to difficult
situations. We pride ourselves on effective and strong representation
of our clients and their families. If you have any questions on the subject
of community property or anything else in the field of
family law please do not hesitate to
contact our office. We offer free of charge consultations and we would be happy
to sit with you and discuss your questions in detail.