Under the Texas Family Code, the filing of a petition for divorce means that three different estates have to be identified and administered: the community marital estate representing property owned by both spouses, the separate marital estate of one spouse, and the separate marital estate of the other spouse. Some divorce cases present difficult questions as to which spouse can claim an interest in what property. For the advice of an experienced marital property attorney, contact me at the Law Office of Douglas C. Smith in El Paso.
In most cases, it’s not especially difficult to identify which particular assets are community property and which assets belong to one spouse or the other. Property owned by either spouse during the marriage is presumed to be community property, subject to a party’s claim to the contrary. Where there’s a disputed claim as to whether a particular asset is community property, the spouse claiming it as separate property bears the burden of proof – by clear and convincing evidence, no less – that the property actually is separate property not subject to division between the spouses in divorce.
Separate property is what each spouse owns prior to marriage. Community property is anything acquired by either spouse after marriage with a few exceptions: gifts, inheritances, and certain personal injury damages. The appreciation in value of separate property (such as real estate) during the marriage is also separate property, but interest earned on separate property (such as a savings account) is considered community property.
Another important concept that frequently arises, especially in cases involving family businesses, is that of economic contribution. The value of a spouse’s contribution toward paying off separate property debts, or for making a family business profitable, can be taken into account in determining the value of community marital property.
Alimony in Texas is occasionally used to equalize the division of marital assets. However, in most cases alimony is awarded under the Family Code on the basis of the needs of the spouse receiving it, due to disability of the spouse, the disability of a child that a spouse must care for full-time or the receiving spouse clearly lacks earning ability in the labor market adequate to provide for the receiving spouse’s minimum reasonable needs.
My experience with the Texas Family Code and familiarity with the courts can give you the advantage in a contested hearing. For more specific advice from an experienced community property lawyer, contact me in El Paso.