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Family Law Cases in Texas: Marital Property and the community presumption

If you read anything about divorce in Texas then you have probably come across at least one article online that has told you that Texas is a community property state. What does this mean and how exactly does it affect- your case? Today’s blog post from the Law Office of Bryan Fagan, PLLC will discuss this topic in detail so that you know for certain what it means to your divorce and your life moving forward.

Presuming property to be community owned during a marriage

All property that you and your spouse own when it comes time for a divorce is presumed to be owned by both of you. The same rule applies for debts that either of you incurred during your marriage. In your divorce, the court will divide both your property and your debts prior to the finalization of your case.

In order to prove to a court that a particular piece of property is not community property, but separate property owned by either you or your spouse individually, you or your spouse will need to present evidence that is clear and convincing to the judge.

At the moment that a piece of property was first acquired by either you or your spouse, you would need to show that at that moment in time the property was, in fact, the separate property of one of you. This is done typically with title documents, receipts or other documentary proof of the transaction that brought the property into your marriage. Testimony from a witness alone about why the property is separate and not the community will not suffice in most cases.

Defining Separate Property

Now that we’ve begun to discuss what separate property is we need to define the term so we can know exactly what we’re talking about. Property that is acquired prior to your marriage or property that is acquired during your marriage by either gift or inheritance is considered to be separate property in Texas.

Many spouses in Texas will sign off on a premarital agreement that places certain property in the category of either separate or community property. In this way, you and your spouse can take property that may ordinarily be viewed as community property and convert it into separate property.

Asserting a reimbursement claim against your spouse

During the course of your marriage, you and/or your spouse may have contributed community income to pay a debt on either of your separate property. That same community income could have been used to improve a piece of your separate property.

For instance, say you owned a home prior to your marriage and that home needed a new roof. You could have used your income to put a new roof on the home. Because that income is community property your spouse, upon divorce, would potentially be able to assert a reimbursement claim against you for utilizing community funds to improve a separate property asset that you own.

Premarital and Marital Property Agreements

We had briefly discussed premarital agreements earlier in this blog post and now we will open up a more wide-ranging overview of these documents. You and your spouse, either prior to your marriage or during the course of your marriage, have the ability enter into a signed, written agreement regarding how you and he/she are going to classify certain pieces of property. This is done to take the decision out of either of your hands or a judge’s hands in the future should you two decide to get a divorce.

Many times spouses enter into premarital agreements in order to keep separate certain pieces of property that have been owned prior to the marriage or to keep certain debts of theirs separate from the community estate.

Marital property agreements are signed off on during your marriage. Many times people will enter into marital property agreements so that certain pieces of community property can be separated between the spouses. In the event of a divorce, the marital or premarital agreement will be attached as an exhibit to your Final Decree of Divorce or incorporated into the Decree by quoting the specific language utilized in the agreement.

Dividing up community property in a divorce

If you had not read anything about divorce in Texas before going through this blog post you may believe that it is a foregone conclusion that your divorce case will be decided by a judge in a courtroom. This is not the case, however.

Typically divorces are decided by the parties themselves in either a formalized settlement process like mediation or in informal settlement discussions between spouses and their attorneys. If you and your spouse cannot reach an agreement on your divorce terms then a court will intercede.

A court will divide community property in your divorce in a just and right manner. The court will determine what is just and right by evaluating the circumstances of your case, each of your rights and spouses and the circumstances at play regarding your children (if you have any).

The popular notion regarding community property is that debts and property will be split evenly down the middle and divided between you and your spouse. Often times this does not occur. Your separate estates and the fault either of you played in causing the divorce will be considered. This often results in what is known as a “disproportionate” share of the community estate going to either you or your spouse.

On top of these factors, taking a knife a la King Solomon and dividing community property in an even fashion is not always possible. For instance, suppose that you and your spouse own a home and one of your files for divorce. What often happens (and what is easiest) if you go to court is that the judge in your case will order the house to be sold and the proceeds would be divided between the both of you. Seems straightforward, right?

Dividing the marital home in a divorce

Well, what if you all have three children who are all school-aged and live in that home. This is a circumstance that does not lend itself as easily to just simply ordering the house to be sold. Your children are already having their lives thrown into a tizzy by your divorce. Being forced to move on top of that would only exacerbate the instability in their lives. What happens in this sort of situation?

Whichever spouse, you or your spouse, end up with the right to determine the primary residence of the children will also likely be able to remain in the home after the divorce.

Whichever spouse loses out on this right will likely be awarded other assets to make up for their losing out on their share of the community property value in the house. Or, whatever equity is in the home at the time of the divorce can be divided and your spouse could be awarded that portion.

This money often comes from the proceeds of a refinance of the mortgage into your spouse’s name only, if for instance you are not given the right to remain in the home after the divorce with your children.

Again, if you and your spouse are able to come to your own settlement terms you can be extremely creative. It just takes an agreement that you both deem to be appropriate and fair. Often times a judge is not in a position to truly know what is best for you and your family but he or she will do their best if an agreement cannot be reached before a trial.

Spousal Maintenance and Children’s Issues in divorce- tomorrow’s blog topic

Please join us again tomorrow as we discuss the popular topic of spousal maintenance and begin to get into issues that relate to your kids in a divorce.

In the meantime, please contact the Law Office of Bryan Fagan, PLLC with questions you may have on this or any subject in the field of family law. We offer free of charge consultations and are available six days a week to meet with you.


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Other Articles you may be interested in:

  1. Reimbursement of the Community Estate: Continuing the Discussion on Divorce
  2. Texas Divorce Overview: Dividing Community Property and Debts
  3. Dividing community property in mediation: What can be done to settle your divorce in Texas
  4. Individual Retirement Accounts (IRAs) and your Divorce: Taxes and General Information
  5. Social Security division in a Divorce
  6. Will Social Security Benefits play a substantial role in my Texas Divorce?
  7. Is Social Security Considered Separate Property in a Texas Divorce
  8. Key Elements of a Divorce for persons over the age of 50
  9. 7 Tips for Divorcing After Age 50 in Texas
  10. Divorcing After Age 50 in Texas: What it Can Mean for You and Your Spouse
  11. Texas Divorce and Retirement & Employment Benefits by the Numbers
  12. Is Social Security Considered Separate Property in a Texas Divorce?
  13. Will My Spouse Get Part of My Retirement in Our Texas Divorce?
  14. Husband Loves His Wife and Wants a Divorce in Texas “On Paper” for Strategic Financial Reasons?

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

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX 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. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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