Table of Contents for Community Property
What’s Mine? What’s Yours? What’s Ours?
Community property is a complex subject, so we’ll present only the highlights below. The Cramp Law Firm stands ready to help if you need us.
The Good News About Community Property
- All property a spouse owned prior to marriage remains that spouse’s separate property after marriage. In other words, marriage does not automatically convert a spouse’s separate property into communal property.
- All property a spouse receives by gift or inheritance during marriage is that spouse’s separate property.
- Everything purchased during marriage is not automatically community property. For example, if a spouse uses money from a gift to buy a new car, then the new car can be that spouse’s separate property unless they do something to make it communal property.
- In divorce, a court has no authority to take a spouse’s separate property and give it to the other spouse.
The Maybe Not So Good News
- The paycheck each spouse earns is community property.
- In divorce, all property owned by both spouses is “presumed” to be community property. That means a court can award it to either spouse unless this presumption is proven wrong.
- A spouse who claims that something is their separate property bears the burden of proving it to the court.
- The standard for proving that something is separate property is “clear and convincing evidence”—which is a higher standard than the one normally used in civil trials.
- A spouse’s own testimony that something is their separate property (i.e. their mere “say-so”) is unlikely to satisfy the “clear and convincing” standard. Additional testimony or documentary evidence generally is required.
- The fact that an item of property is titled in only one spouse’s name is not conclusive proof that it is that spouse’s separate property.
- If a spouse mixes their separate property with community property so that its separate nature no longer can be identified, then it becomes marital property. This can happen quite easily, for example, when separate and community funds are combined in a single account and bank records get lost as the years go by.
- With proper jurisdiction, a Texas court will divide all marital property owned by the spouses whether it’s located in Texas or some other State.
The Rest of the News Regarding Community Property
- A court is not required to order a “50-50 split” of community property.
- Rather, a court’s task is to divide community property in a “just and right” manner—a very flexible standard. Factors a court may consider include:
- Fault in breakup of the marriage;
- Benefits the innocent spouse would have derived had the marriage continued;
- Relative financial condition of the spouses;
- Relative size of separate estates of the spouses;
- Relative ages of the spouses;
- Relative education levels of the spouses;
- Relative earnings power of the spouses;
- Relative business opportunities of the spouses;
- One spouse’s efforts to waste or dissipate community property;
- Needs of the children of the marriage; and,
- Other factors the court deems appropriate based on the specific facts of the case.
- Finally, property’s status as separate or community can be affected by a premarital or marital property agreement.
For more information, please contact our family law attorney for a consultation. The Cramp Law Firm, PLLC is standing by to help you!