The initial definitions of separate and community property in the Texas statutes can be reasonably straightforward.

However, changes in statutes and appeals decisions may apply to the facts of your case. Consult your attorney to deterine the proper application of laws and appeals decisions to your case.

Generally, a spouse's separate property consists of:

  1. The property owned or claimed by the spouse before marriage;
  2. The property acquired by the spouse during marriage by gift, devise, or descent; and
  3. The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Community property consists of the property, other than separate property, acquired by either spouse during marriage.

Further, the statute sets out the "starting position" for how to classify property in the divorce proceedings:

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. The degree of proof necessary to establish that property is separate property is clear and convincing evidence.

As you can see, thoroughly documenting all transactions and uses of your property is an essential part of your preparation. In particular, be prepared to discuss how the property has been managed, improved, encumbered, used for income or otherwise treated during the marriage, as these factors can have significant effects on how it is classified and divided during the divorce.

Please contact me to discuss the specifics of your case.

Return to Preparing for Divorce.

I understand that divorce is both a legal and personal process.

My job is to manage the legal process to protect and extend my client's interests- allowing them the room to address the personal issues.


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Ms. Asher practices Family Law and Collaborative Family Law in Harris County, Ft. Bend County and Montgomery County, Texas.