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Property Division

Community Property

Texas is a community property state. What that means, very generally, is that from the date of your marriage until the date of your divorce, everything that either one of you earns, meaning your income from your job, your income on separate property, your retirement benefits, your bonuses, all of that belongs to the community. It does not belong to you individually after the date of the marriage.

Separate Property

Anything that you had prior to marriage is considered your separate property. Anything you receive by gift or inheritance, even if it is a gift from a spouse, is considered separate property.

The way I often explain this is to consider your estate like it’s in three different buckets. You have the community bucket, you have the husband’s separate bucket and you have the wife’s separate bucket. And we’re going to look at everything and determine which bucket it goes into.

Every once in a while, we may have an IOU from one bucket to another. If we have one of those IOU's, that’s generally known under Texas law as an equitable right of reimbursement. Let’s say on the date of the marriage you own a separate property house and during the marriage you’re paying the mortgage on the house. You may be using the money from your job but remember once you’re married, the money that you get from your house is not community property. So essentially you’re taking money out of the community bucket because your income from your job now belongs to the community and you’re putting that money into your separate property bucket.

Inception of Title

Texas is an inception of title state. That means that the character of a piece of property maintains that character for the duration. So if you owned a home prior to your marriage and it was a separate property when you bought it, it’s going to stay your separate property even if you’re paying the mortgage on that property for 20 years during the marriage.

Now there are ways that can be changed if you were to gift deed part of that property to your spouse, and very rare situations, if you were to do a refinance and deed the property over to your spouse but usually it has to be an open and overt act that you have knowledge of. It doesn’t typically happen by mistake, that you would convert the character of a piece of property.

We’ll cover this in another video, but another way that the character of property can change is by way of a pre-nup or a post-nup, also known as marital property agreements, or partition and exchange agreements.

Personal Property

When we’re talking about personal property we’re talking about things like cars, motorcycles, boats, motor homes, things of that nature, also dishes, plates, you know very small personal property items. And when we divide those very small personal property items, for the most part, the lawyers stay out of it. We generally like for people to try to divide those types of household goods on their own to the extent that they can because it does not make sense financially for the lawyers to get involved in dividing those household goods. Many times what is said in the final decree of divorce is that each person keeps their own personal items, things like clothing, jewelry, personal care products. Those things, we’re going to assume you keep what’s yours and they keep what’s theirs. But a lot of times what’s said is that they each keep what’s in your possession. And that’s just the easiest way to do it.

There are exceptions to that, and of course, there are items that are of sentimental value or works of art of antiques that kind of thing, those can be valued. Keep in mind, again, a lot of times those items are family heirlooms. If it’s a family heirloom and it was yours prior to marriage, it’s your separate property, it’s not divisible. Even if the judge thinks you’re the worst spouse in the universe, they cannot deprive you of your separate property. Your separate property can be used in order to determine spousal support, interim spousal support, interim child support, and child support post-divorce. However, again, even if a judge despises you and thinks you’re the worst person alive, they cannot take your separate property and award it to your spouse.

If you’re a business owner or you have family property, that’s kind of a whole separate issue and so we’ve got a set of videos that addresses those unique situations and you may want to refer to those for more information on those particular topics.

Property Outside of Texas

Another thing to keep in mind is if you own property that is outside of the State of Texas, whether it’s international or in another state, Texas identifies those properties as what we call quasi-community property. If it’s in another state, it’s a little bit easier for us to exercise some due diligence on those properties and figure out what’s there and try to make appropriate property awards even though we don’t have jurisdiction over what’s in another state. If we have personal jurisdiction over you and your spouse we can direct you as to what you are to do with regard to dividing those properties even though our courts can’t physically divide them.

International Property

When it comes to international properties, that becomes quite a bit trickier. If you’re dealing with international property issues, we most likely can help you there and we have expertise in that area. We have contacts all over the world. That is addressed in another set of videos and most likely it’s a situation where you’re going to need to come in and talk with me about your specific situation and how we can help you.

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