The powerful emotions surrounding divorce are often enflamed even more by battles over the couple’s property. “Why should he get that?” “Why would she get this?”
Questions of property division tend to come up early and often in divorce cases, and remain at the forefront for the duration, particularly when the couple’s estate is fairly complex. Building your awareness on this topic can help you understand why things unfold the way they sometimes do in divorces and help you recognize and address potentially sensitive issues in your own case.
Community Property vs. Separate Property
Texas is a community property state, which means most property acquired by either spouse during the marriage is considered to belong to both spouses. It doesn’t matter whose name is on the property; if it was acquired during the marriage, it will most likely be considered community property and will need to be divided during a divorce.
Separate property, however, remains the property of the spouse who owns it. That includes separate property a spouse acquires during the marriage. Confused yet? Don’t worry, this isn’t easy.
Let’s give some examples of separate property that would not be subject to property division during a divorce:
- Property you owned prior to the marriage.
- Gifts you received while married: for example, perhaps your parents gave you $20,000 while you were married. You’ll need to prove that your parents intended it as a gift to you specifically.
- Money received as part of a personal injury claim while you were married.
- Property you received through someone’s will when they died, even if you received it during marriage.
- Property you inherited during the marriage from someone who did not have a will.
A Few Concrete Examples of What Is Community and What Is Separate
Here are a few items that are commonly disputed in Texas divorce cases:
- Real property: If the property increases in value during the marriage (appreciates), then the value of the appreciation is community property. If a spouse owns separate real property that earns rent or generates any other income, then that income is community property.
- Stocks: The appreciated value of a stock is separate property. Dividends from a stock are community property. Complicated exceptions exist when a closely-held corporation is involved.
- Trusts: If a spouse gained a beneficial interest in a trust before the marriage, it is separate property.
- Oil/gas/minerals: Interests in oil, gas, and minerals are separate property.
- Retirement benefits: A spouse has a community property claim to the portion of retirement benefits earned by the other spouse during the marriage. It does not matter if the retirement account itself was opened before marriage.
An Attorney’s Guidance Is Instrumental in Divorce Cases
It’s easy for community property and separate property to quickly become an issue in a divorce. Fortunately, there are helpful, creative ways to address the problems that may arise, and a good attorney will be open to many different possible ways of resolving the issues so that you are treated fairly in the end.
I have handled very complex property division cases for decades here in Texas. I understand the nuances and details that will affect you and will present a strong, creative case on your behalf. You don’t have to try to do this alone. Contact the Law Offices of V. Wayne Ward in Fort Worth if you have any questions.
