Texas has a “sharing is caring” type of philosophy when it comes to divorces. Remember the couch that you and your spouse bought a couple of years ago? Since you and your spouse got the couch while you were still married, Texas courts will make the presumption that your couch is not a separate property. The court will then have to decide: Who Will Get the Couch? This means that the Labrador Mix that you and your spouse purchased four years ago would be considered to be community property. You and your spouse may not agree on who should get to keep the dog. Again, a court will make that decision for you if you can't agree. What if you have children that have a special connection or attachment to a pet? Will the court take that into consideration?
Imagine the Following Analogy:
There is a chef that is preparing a meal. He has three pots on the stove. The largest pot is Community Property. One pot is the separate property of the Petitioner, and the final pot is the separate property of the Respondent. In this analogy, the chef is like the Court in that the Court must determine the correct amount to put into each pot when the divorce is final.
What is Community Property?
Well, there is no definition of community property in the Texas Constitution. However, the Texas Family Code defines it as “the property, other than separate property, acquired by either spouse during marriage.” TEX. FAM. CODE § 3.002; Douglas v. Delp, 987 S.W.2d 879, 882 (Tex. 1999).
Texas is a community property state which means that the presumption is that any property acquired during the marriage is Community Property. It is property that belongs to the community; it belongs to both you and your spouse. Since the law then views the property as both of your property, the court will aim to give a just and right division and divide your community estate as equally as possible (usually 50/50). This is not a set scale but a sliding one, and there are many factors that a court may consider when adjusting the sliding scale when dividing the property. Speak with an experienced divorce attorney to discuss what type of division you'll likely get if you divorce your spouse.
Inception of Title Doctrine
The presumption that property is community property (as mentioned earlier) can be rebutted using the inception of title rule. Under the Inception of Title Doctrine, the character of property (whether it is community or separate property) is fixed at the time that the property was acquired. Henry S. Miller Co. v. Evans, 452 S.W.2d 426 (Tex. 1970). The Inception of Title Doctrine applies if a spouse has a right of claim to the property; the property has vested. Welder v. Lambert, 44 S.W. 281 (Tex. 1898). This means that in order to figure out if property is community or not, the court will look at “inception date” to make that determination.
Mixing Community Property with Separate Property
Sometimes (even inadvertently) parties mix their separate and community estates. Imagine that your late uncle George left you $100,000 when he died, and you used some of that money (along with your money saved from you and your spouse’s last two pay checks), to put a down payment on a house in Austin, Texas. In your divorce, some of the money will be characterized as separate property, and some of it will be characterized as community (as long as you can trace your separate property and determine and prove what amount is your separate property). This means that the Austin home that you purchased will be characterized as both community and separate property to the extent, and in the proportion that the property was purchased with separate property funds and with community property funds. Cook v. Cook, 679 S.W.2 581, 583 (Tex. App. – San Antonio 1984, no writ).
Can I Figure Out the Extent of My Community and Separate Estate on My Own?
In all honesty, it depends. If neither you or your spouse have separate estates, then figuring out the property acquired during your marriage (community property) should not be difficult. However, if the community estate is large, you or your spouse have separate estates, or you would just like to have someone experienced to help you characterize your property, then you should contact an experienced attorney because any property that you are not successful at proving as your separate property will be characterized as community and divided between you and your spouse. Remember, in Texas, "sharing is caring".
Texas Marital Property and Separate Property
Texas marital property encompasses everything spouses acquired and own during their marriage. In this video, Brian Walters explains how the court views marital property in Texas. He also discusses what may be considered “separate property” owned by one spouse, which can be kept intact while other assets are divided during divorce. There are three main types of separate property: property that was owned before you got married (and you still own), property given to you specifically as a gift during the marriage, and property you inherited during your marriage. You may be able to keep those types of property for yourself during the divorce, though there are some issues regarding proof and evidence that you and your lawyer will need to overcome.
For more information regarding property division in a divorce, download our eBook, "Your Guide to - Property Division in a Divorce" by clicking here.