Friday, September 28, 2007

FAQ regarding Divorce # 15: What is the difference between "Community Property" and "Separate Property" in Texas?

Texas is a Community Property state. This generally means that income that is earned during the marriage and property that is obtained during the marriage is presumed to belong to both spouses (regardless of whose name may appear on the paycheck or title documents) and is subject to division by the Divorce Court in a manner that the Court deems to be “just and right.”

The best way to define Community Property is to determine what is not community property – then everything else is “presumed” to be that of the community. Generally speaking, either spouse will have a “separate property estate” in the event they acquire property (a) prior to marriage or (b) during marriage by some type of inheritance or by way of a gift. Again, the rest of the property is presumed to be community property.

Spouses can also agree to alter the “community property” presumption through certain types of written agreements. The most common type of such agreement is generally referred to as a “prenuptial agreement,” because it usually occurs prior to the marriage, but spouses can also enter into similar agreements after the marriage.