Houston Property Division Lawyers

Community Versus Separate Property in Texas

During property division in Texas, the parties must equitably divide community property. Courts typically identify community property as assets and liabilities either party acquires during the marriage, as well as assets and liabilities they purchase together.

Separate property, which includes property acquired prior to the marriage and property intended explicitly for one party (such as a gift or inheritance), is exempt from the property division process.

Parties can either agree on how to divide community property or rely on the court to reach a decision on their behalf. Regardless, the court must confirm that the spouses divide community property in a way that is "just and right" considering the circumstances of the case.

What constitutes a "just and right" division of property varies on a case-by-case basis. 

Some factors that can impact the court's decision include:

• Whether one spouse is at fault for the divorce (accused of adultery, domestic violence, etc.);
• The length of the marriage;
• The health, employability, and earning capacity of each spouse;
• How other divorce-related processes such as child support, custody, and alimony proceed;
• The separate property estate of each spouse; and
• Any other factors the court considers relevant.

Depending on the details of the divorce, individuals often work with various other parties, such as financial experts during the property division process to ensure everything proceeds smoothly. Visit our complex property division page to learn more.

Separate Property Preservation in Texas

During the property division process, spouses hold a "fiduciary duty" to one another. The fiduciary duty means that neither spouse can waste or dispose of community property until the court finalizes the property division process.

However, individuals can take steps to preserve separate property. You should speak with your property division lawyer to determine the best way to inventory and maintain your separate property during your divorce.

Proving Property Is Separate

Some assets, including real estate, can transition into community property over time, even if it started out as separate property.

To claim property as separate, you must provide proof supporting that you either owned the property pre-marriage, or the other party has not made any contributions to the property. This process is called "tracing." This often involves providing the court with proof of ownership and financial information confirming when you obtained the property and how you handled it during the marriage.

You can work with your lawyer to support your claims. You may also wish to work with a financial expert who can help trace purchases and financial contributions through means such as forensic accounting.

Frequently, couples utilize separate assets (such as withdrawing stocks) to purchase community property together. When this happens, it can result in previously separate property getting commingled.

To divide community property equitably and accurately identify separate assets, you can work with a financial expert to conduct asset tracing. Tracing assets gives you the information you need to pursue an optimal outcome in your case.

At Diggs & Sadler, our Houston separate and community property attorneys are used to helping clients navigate complex cases and work with professionals like financial experts.

To schedule a consultation with our team or learn more about our services, contact us online or via phone at (713) 766-5355.