In looking at property to be involved in a divorce action a divorce lawyer must make a determination of what property is separate and what property is community. In Texas, property possessed by either spouse during or on dissolution of marriage is presumed to be community property. The degree of proof necessary to establish that property is separate property is clear and convincing evidence.
So what is separate property? In Section 3.001 of the Texas Family Code separate property is defined as property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise or descent and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
For example, a service member may have served for a period of time before marriage. Those years of active duty are not to be included in the calculation to determine the proper division of his or her retirement benefits.
A spouse may have purchased a home before marriage. That home is considered to be his or her own separate property. However, if during the marriage payments are made on the mortgage then the other spouse can claim a reimbursement of a share of the reduction in the mortgage principal created during the marriage.
And, if any community income is applied to benefit a separate asset then the spouse not owning the separate property may claim a reimbursement for those monies benefitting the separate estate.
There are many rules addressing community and separate property. This is only a smattering of some examples. Many parties entering a marriage can enter into prenuptial agreements to preserve the separate nature of their respective properties including their income enjoyed during the marriage.
If you are contemplating a divorce in your life then it is wise to contact an experienced divorce attorney to discuss how these rules governing community and separate property could affect you. Call us at 915-593-6600 or at 915, 256-0579.