Community vs. Separate Property in Texas

In our previous blog, What is Separate Property, we delve into the basics of understanding what is deemed separate property by the Courts. As a debrief, a spouse’s separate property consists of the following:

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. TEX.FAM.CODE § 3.001

In consideration of this definition, generally speaking, property acquired during the course of your marriage to your spouse will be characterized as community property. Typically your community property is divided between you and your spouse in a divorce while separate property will not be shared and/or divided. With this in mind, if you and your spouse purchased a home during your marriage, the home will most likely be characterized as community property. If you or your spouse owned the home before marriage, it will most likely be considered separate property (and possibly subject to reimbursement claims). There are instances in which the house may be “mixed” in character.

For example, if the house was purchased during the marriage with “community” credit, but separate funds were used for the down payment, a percentage of the house will be community and a percentage of the house will be separate. The calculation can be very nuanced and often requires an expert witness giving an opinion about the character of the house. So that leaves us with a dilemma in a case where the parties cannot agree on what will happen to the home in the short and/or long-term.

Once it has been established that your home is community property, how will the Court decide who gets the house? Obviously, the Court won’t order that someone take a chainsaw and literally attempt to divide your house in half (no matter how tempting it may be in some cases).  How does a Court deal with this issue? What happens to your family’s Texas home while your divorce is still pending?  Find out in our next blog, Factors the Court May Consider When Deciding Who Gets the House.