There are nine community property states, and as you may have already guessed, Texas is one of them. Under the Texas Family Code § 3.002, Community Property is property owned together by both spouses and includes any property acquired by either spouse during marriage. On the other hand, separate property is property that was owned prior to the marriage; or acquired during marriage by gift, devise or descent; or certain parts of a recovery for personal injury (e.g. pain and suffering). See Texas Family Code § 3.001. Any property that is not separate property is automatically deemed community property. Note, however, that there is a presumption that property possessed by either spouse is community property. That means a court will assume that all property in the marital estate is community property and it is up to the spouse claiming that it is separate property to provide evidence to override the presumption. If there is any doubt as to the classification of property, it will be deemed a part of the community property.

How is Community Property Divided?

In the event of a divorce, if there is not a written agreement between the spouses regarding the division of marital property, the Court will make what is called a “just and right” division of the marital estate. “Just and right” means any manner the Judge deems fair based on the circumstances. Some factors that the court will consider include, but is not limited to: 1) disparity in the earning capacities of the parties; 2) differences in educational backgrounds; 3) primary responsibility for raising the children; 4) differences in age and/or health of the parties; 5) needs of the spouse and children, if any, after the divorce.

What if my Spouse Never Worked?

It is important to note that in the event of a divorce, it is not of consequence that one spouse was the sole breadwinner during the marriage. All income earned, whether it be by one or both spouses, belongs to the community. A spouse will not be disadvantaged because they stayed home and took care of the home and children, instead of choosing to work. The law views each spouse as contributing to the community in some way.

Will the Court Honor an Agreement Made Between Me and My Spouse on How to Divide the Property?

Spouses may create an agreement regarding how property will be divided in the event of a divorce. This may be done using either a premarital agreement aka prenuptial agreement, or a marital agreement. A premarital agreement is an agreement made preceding, and in contemplation of marriage, while a marital agreement is made anytime during the course of the marriage. Under Texas law, a premarital agreement must be in writing and signed by both parties, and becomes effective upon marriage. Generally, parties may agree to anything in a premarital agreement as long as it does not violate a law or public policy, and the agreement cannot adversely affect a child’s right to child support from either party. After marriage, a premarital agreement may be revoked or amended if it is in writing and signed by both parties.

Similarly, to be effective, a marital property agreement must be in writing and signed by both parties. Additionally, parties to a marital agreement must ensure that they both provide “fair and reasonable disclosure of [their] property or financial obligations” to the other party. See Texas Family Code § 4.104, 4.105. Once these formalities are out of the way, among other things, spouse’s may agree that property that would otherwise be classified as community property will be separate, and vice versa.

We Can Help

Essentially, marriage is a contract between two people and we can help you formulate a premarital agreement, marital property agreement, or file an original petition for divorce. Whatever your needs are, the lawyers at the Ted Smith Law Group are well-equipped to guide you through the process, so that you don’t have to do it alone. To better understand how we can help, contact us today for your free initial consultation with one of our lawyers.

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