How does Separate Property work in a Community Property State?

In a community property state, the property that spouses share gets split down the middle. The Texas Family Code includes regulations governing separate property, or that which you own independently of your spouse, as it relates to the division of your assets.

If you and your spouse are planning to divorce in Texas, you may have questions about property division and who gets what. Texas is a community property state, one of only a handful in the country.

How does the code define these types of properties?

Generally speaking, when either you or your spouse acquire property during your marriage, it becomes community property. In other words, even if you paid for it out of your own pocket and you are the only one who used it, you and your spouse own it equally. This makes it subject to property division when you divorce.

The code describes a few specific types of property that you may have acquired during your marriage that nevertheless are separate and not subject to division.

For example, any damages that you recover for personal injuries sustained during your marriage are separate property except recovery for lack of earning potential.

Property that you inherit or receive as a gift from someone other than your spouse is separate. Otherwise, separate property is that which you owned prior to your marriage.

What is the presumption of community property?

Even if you own property that meets the definition of separate, the law presumes that all the property you and your spouse possess during your marriage is community property. This means that you need to produce clear and convincing evidence to prove that some of your property is separate.