Texas is a community property state. That means that, for a married couple, anything acquired during the marriage belongs to both spouses equally—property, salary, cars, returns on investments, pets, furniture—everything. It doesn’t matter whose name is on the deed or the title. If you acquired it during the marriage, it is probably community property.
However, there are a few exceptions:
- If you owned something prior to marriage, it remains your separate property.
- If you inherit something during the marriage, it is your separate property.
- If someone gives you a gift, it is your separate property.
- If you owned property prior to marriage from which you receive royalties, such as an oil lease, the income from those royalties may be considered your separate property.
- If you sell your separate property during marriage, the income from the sale may be your separate property.
When a marriage ends, the law presumes that everything you own is community property. If you have separate property, you must be able to PROVE that it is separate property and not community. This is done through a procedure called “tracing,” which can be a complicated process that you should discuss with your attorney.
You cannot have community property unless you are LEGALLY MARRIED, either formally or informally (also known as “common law” marriage). If you were not formally married but believe you may have a common law marriage, discuss this with your attorney.
When a marriage ends, if you and your spouse can agree IN WRITING as to the division of your property, the courts will almost always adopt that agreement. If you cannot agree, the court will divide your community property as the judge “deems just and right with due regard for the rights of the parties.” You may get a 50/50 split, but you’re just as likely to get an uneven division.
One thing the court cannot do is take your separate property (once you have proved that it is, in fact, separate) and give it to your ex-spouse. But the court CAN grant your ex-spouse a security interest—a lien—on your separate property to ensure that you pay child support or other debts. Additionally, if the value of your separate property was increased through the use of community funds, such as by making improvements to the property or paying down the mortgage, the court can order you to reimburse your former spouse for a portion of the increase.
***THIS FLYER IS PROVIDED FOR INFORMATION ONLY. IT SHOULD NOT BE CONSIDERED LEGAL ADVICE***