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His, Hers and Ours - Texas Divorce

Community Property in Texas is created at the time of marriage. At the time of marriage three independent estates are created. These estates include the husband’s estate, the wife’s estate, and the community estate. At the time of divorce the Courts determines the characterization of property as either separate or community property. Although Texas Courts do not have authority to characterize separate property, the Family Courts have authority to make a just and right division of the community estate in the absence of a pre marital agreement. Community property in Texas is everything a husband and wife own together. This typically includes all money earned, debts incurred and property acquired during marriage. Separate property is all property that was acquired before marriage. Here are some key things to know about community property in Texas.

Marriage creates three independent estates

  1. Husband’s Estate
  2. Wife’s Estate
  3. Community Estate

What is Community Property?

Texas Community Property is property acquired by either spouse during the marriage.

There is a rebuttable presumption that all property owned at marriage is community property. To rebut this presumption, spouses must provide clear and convincing evidence that a particular asset is separate property in Texas.

Types of Community Property

  • Income from separate property in community property
  • Oil and gas delay rentals
  • Loss of wages and loss of consortium from personal injury settlements
  • Stock options
  • Pensions (employee retirement benefits)
  • Disability benefits and workers compensation

What is Separate Property?

Separate Property is

  • property acquired before marriage,
  • property acquired during marriage by gift, devise or descent
  • property acquired during marriage, but purchased with separate property funds

How do you determine the characterization of an asset?

The characterization of separate property or community property is determined at the time the asset is acquired.

Types of Separate Property

  • Interposal gifts
  • proceeds from minerals extracted from the separate property of one spouse
  • oil and gas bonuses and royalty interests
  • Income from a trust

Dividing the Marital Estate

At divorce, courts make a “just and right” division of community property. The court cannot divide separate property.

Some factors that a court looks at when determining a “just and right” division of community property include:

  • Spouse's education capabilities and abilities
  • Disparity of incomes
  • Disparity of earning capacities
  • Relative physical conditions
  • Relative financial conditions and obligations
  • Disparity of ages
  • Size of separate estates
  • Size of community
  • Length of marriage
  • Tax consequences of any proposed division

Questions on divorce, LBGT marriage or any other family law matter? Contact the Law Office of Bryan Fagan, PLLC

The licensed family law attorneys with the Law Office of Bryan Fagan, PLLC offer free of charge consultations six days a week to potential clients like yourself. Contact us today to set up a no strings attached meeting.


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Law Office of Bryan Fagan, PLLC | Spring, Texas Divorce Lawyers

If you have questions regarding community or separate property, it's important to speak with a divorce lawyer right away to protect your property rights. Our divorce lawyers are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, TX, Spring, Cypress, Klein, Humble, Tomball, the FM1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers, Galveston, Brazoria, Fort Bend County and Waller County.

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