Community Versus Separate Property

December 5, 2022
By Justin Morgan
December 5, 2022

Texas is one of the few community property jurisdictions in the United States. This means that most property acquired during a marriage, by either spouse, is considered owned equally by the spouses and divided accordingly.

So, what is the definition of community property? The Texas Family Code defines it in Chapter 3 Sec. 3.002 as “… property, other than separate property, acquired by either spouse during marriage.” Therefore, everything other than separate property.

Separate property is defined in Chapter 3 of the Texas Family Code as “(1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.”

A gift is basically a transfer of property without consideration which happens when someone gives you something. A devise is property obtained through a will. Lastly, descent is property obtained through the death of a person.

If property does not fall within those narrow categories of separate property, then it will likely be considered community property for the purposes of categorization. There is a presumption that community property is equally owned but the family code provides that the property should be divided just and right. Therefore, spouses may receive unequal shares at the conclusion of a divorce.

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