DISTRIBUTION OF PROPERTY UNDER TEXAS DIVORCE LAW

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In analyzing the distribution of property, the court will divide your property into two primary categories:

1. Community property
2. Separate Property

Community Property:

Community property consists of the property, other than separate property, acquired by either spouse during marriage. This is true even if only one spouse has possession of the property. Just because one spouse is named on the title, deed, or account; one person receives the asset as payment for personal services (ie: salary); or the asset will not be paid until a future date (ie: retirement) do not make it separate property. There is a presumption that all property possessed by either spouse is community property. Separate property ownership must be proven by clear and convincing evidence. The most common way of proof is by tracing the asset from the date of acquisition to present date.

Tracing how funds were acquired can be particularly difficult if funds have been deposited into an account which also contains monies which would be considered community property (ie: salary) has been deposited, the separate property may become commingled to the point that it is not possible or cost-effective to prove its continued existence.

Separate Property:

Briefly stated, Separate Property consists of:

1. Property owned prior to marriage;
2. Property acquired at any time by gift or inheritance;
3. Recoveries for personal injuries sustained by a spouse during marriage (except for loss of earnings); and
4. Property exchanged for above items 1 - 3

Division of Community Property:

Community property is divided in a just and right manner. This does not necessarily mean equally. However, an equal division is a good rule of thumb. The value of all the property is to be determined as near as possible to the date your divorce. "Value" usually means the price at which the item could be sold currently on the open market. Insurance appraisals are at replacement value, which is usually higher. It is also necessary to determine current debts. It may be necessary to retain an appraiser to value your home, business, or retirement plan.