Is It Community Property or Separate Property?

If you are moving toward divorce, one of the many concerns you may be facing is:  Whether property is community property or separate property?

While this short blog cannot provide a full dissertation of the property law in family law, we will provide some basic ground rules.  For specific questions, please give us a call or send an email to

If a divorcing couple owns property, it must be divided first into community property and separate property.  Once it is clear what is community property, the community property must be divided between the divorcing spouses.  In a divorce, if the parties cannot amicably divide the property, the Court will do it for you.  When that happens, one or both parties may be disappointed.

Principals For Determining Separate Property Or Community Property

Texas and California have one thing in common – they are both community property states.  (There aren’t many other similarities.)  In a community property state, the law says that all property acquired during marriage belongs to both spouses.

Separate property is any property a spouse owned prior to the marriage.  Also, if one spouse receives a gift before or during the marriage, that is separate property.  If one spouse is injured during the marriage and recovers money as compensation for those injuries, that is separate property.  But, there’s a caveat for this one – if the injured spouse recovers lost wages, that part of the recovery is community property. If one spouse inherits property during the marriage (as opposed to a joint inheritance), that is separate property.

It’s important to note that Texas law presumes that property is community property.  In other words, all property in the marriage is community property until one spouse proves it is separate property.  You don’t have to prove “beyond a reasonable doubt,” like in a criminal case.  Rather, you must prove by “clear and convincing” evidence.”  That’s a higher standard than the normal burden of proof which is preponderance of evidence.

Community Property Is Divided in a “Just and Right Manner”

After a couple of decades working in law, you realize why Judges have so much latitude.  The law gives them that latitude.  Texas law provides the judge the following vague principal for dividing community property:  Do it in a manner that’s just and right.  The idea of what is just and right has an infinite number of variables. What is just and right for your soon to be ex-spouse might not be just and right for you.

The division of community must be equitable.  That’s the way the law says it must be fair. Again, what is fair to one person is not fair to another person.  That’s why it is normally best to work out a property division without involving the Court.

Can the Court Consider “Fault” In Dividing Property?

Yes.  Have you heard of unclean hands?  This is a legal doctrine that says between two people, the one with unclean hands will not be rewarded.  In other words, if one spouse has not been monogamous, that spouse has unclean hands.  Texas courts may take a spouse’s fault into account when it comes to property division.

Assume a hypothetical spouse has been diligent, devoted, loving and faithful.  Assume the other spouse has been irresponsible, unfaithful and destructive of the marriage.  The Court can take this into consideration when dividing property.  The Court can consider cruelty, adultery, felony conviction and abandonment.

The Court can also consider such things as health, custody of children, employment history, earning power, etc., etc.  Basically, the Court can consider just about any factor in dividing property.

In another blog, we will discuss the division of pensions and other employment benefits like 401(k).

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