Separate Versus Community Property In Divorce

El Paso Divorce Lawyer – Douglas C. Smith

In a divorce case separate property is not subject to division by the divorce court.  Community property is.   

Separate property consists of property owned or claimed before marriage.  It is also property received by a spouse during the marriage by gift, devise or descent.   Separate property can include a recovery for personal injuries sustained by a spouse during the marriage except any money received for loss of earning capacity during the marriage.  A good example of separate property would be service connected VA disability payments, SSI and Social Security Disability payments received during the marriage. 

Let’s suppose a spouse, prior to marriage, retired from active military duty or some other employment. Those retirement benefits would be characterized as separate property.  Let’s also suppose that a person gets married after having served for 10 years on active military duty.  He then retires after an additional 10 years of active duty.  A portion of his military retirement would be considered his separate property and the portion earned during the marriage as community property. 

However, even though a person is receiving disability payments these payments can be included in that recipient’s “income” for calculation of child support. 

In Texas divorces all property/income is presumed to be community and the party claiming that certain property and/or income is separate has the burden of proving the separate nature of that property.  And, proving the separate nature of property during a divorce proceeding is by clear and convincing evidence.  This is a higher burden of proof than mere preponderance of the evidence. 

Another caveat!  Income earned during the marriage from separate property is considered to be a community asset.   And, all income earned during the marriage is presumed to be community.  This means that a stay-at-home spouse “earns” one-half of all of her spouse’s employment income. 

A person claiming that certain property came from a separate source must trace that property back to a point in time that predated the marriage or back to property received by giftg, devise or descent during the marriage.  This is often called “tracing”.  

If you have any questions about separate and community property call us!  I have been a divorce and family attorney for 25 years in El Paso County.  Call us at 915-593-6600 or email us directly at: doug@dsmithpllc.com.