Divorce - Asset Division
Basics
Generally, assets (property) brought into the marriage by one party are considered separate property and assets obtained during the marriage are considered community property.
Upon a divorce, separate property generally goes back to the party who brought the asset into the marriage. For community property, courts generally divide the assets in a fair and equitable manner.
There are factors like martial agreements, comingling, or other factors that may alter these general assumptions.
Community Property
Community Property is the presumption in Texas. Texas Family Code section 3.003 states all property that either spouse possesses during the marriage or at its dissolution is presumed to be community property.
Unless a party to the marriage is able to prove an asset is separate property, the court will assume it is community property and will divide the asset in a just manner. This generally includes property that has a title, regardless of whose name the property is titled in.
Separate Property
Under Texas law (Texas Family Code section 3.001), separate property belongs exclusively to one party in the marriage, and falls into four (4) main categories:
- any property owned or claimed by a spouse before the marriage,
- property acquired by one spouse during the marriage as a gift,
- property received through inheritance, and
- an award for a personal injury.
In the event of a personal injury award that compensates for the loss of earning capacity during the marriage, that award amount is considered community property. This distinction ensures that compensation for lost wages is shared.