Dividing Property in a Divorce

Whether you are thinking about getting divorced or are in the process, it’s important to take into account what your property situation currently is and what it will be as you finalize your divorce. In Texas, how a couple’s property is divided at the end of the marriage will depend upon how the property is classified.


couple dividing property and assets

Community vs. Separate Property in Texas


In the state of Texas, there are two classifications of property that are recognized while going through a divorce proceeding, community property and separate property.


Community property is considered any property acquired by a couple during their marriage, with a few exceptions, that is equally owned by both spouses. It recognizes that both spouses contributed to a marriage in different ways, and considers those contributions financially equal under the law.



Separate property includes property that was owned or claimed before the marriage and certain types of property acquired during the marriage such as gifts and inheritance or property gifted from either spouse to the other.



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Characterization of Community and Separate Property


The method by which property is characterized can be complex, but the first rule to understand is called inception of title. This means, whatever characterization the property had, either separate or community, at the time it was acquired will remain unless something else happens to affect its character.


In Texas, it is presumed that if the property exists at the time of your divorce it is community property. If particular property doesn’t fit the definition of either community or separate property then it is presumed to be community property. The inception of title rule states that the facts which exist at the time the property was acquired will determine whether or not the property is community or separate in nature.


Division of Property in Texas


Texas law requires that the judge divide community property in a manner that is equitable. There are many circumstances that the court can consider in determining what is equitable, including primary custody of the child(ren) and the disparity of earnings between spouses.


Separate property, on the other hand, does not get divided in the divorce. Separate property will continue to belong to the individual that owns that property after the divorce is finalized. Even if the property has been refinanced during the marriage, it will always be separate property unless it is re-deeded into someone else’s name.


house with white fence

Although this may help to answer some general questions about property division during your divorce, more specific questions related to your unique and individual case should be brought to your divorce attorney or to an attorney you can trust. C.Y. Lee Legal Group, PLLC has more than a decade of experience helping families through the divorce process. Contact them today for a free consultation.

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