21 Jan What is the community property? What is separate property?
Texas is a community property state. This means that all property possessed by either property is presumed to belong to the community estate. The community presumption applies to all real and personal property. Community property is property that is acquired or created during the marriage by either spouse, with each spouse sharing an undivided one half interest in the property. In a divorce, all assets and liabilities that are identified and characterized as community property must be divided by the spouses in a manner that is “just and right”.
A spouse may overcome the community property presumption by proving to the court that that the property is a separate asset of that spouse. Separate property is property that does not owe its existence to the marriage; it is acquired or created apart from the marriage and is owned individually by each spouse. In a divorce, the court is prohibited from divesting title a spouse of title to his/her separate property by awarding it to the other spouse.
The following are the most common forms of separate property:
- Property acquired before marriage.
- Property acquired by inheritance, devise or descent.
- Property acquired by gift from an individual other than a spouse.
- Property acquired by gift from a spouse. (including jewelry and wedding rings)
- Property recovered from a personal injury settlement.
- Property acquired as part of a pre-marital agreement or post-nuptial agreement.
- Property that was acquired from a spouse’s separate funds
- Property acquired by a creditor who looks solely to the separate estate of a spouse for repayment.