Division of Property During Divorce, Part I: Categorizing Property

January 15, 2019

 The division of property during divorce is an issue that creates stress for many people.  Questions about who gets what and what may be “taken” during divorce are commonly asked, as well as questions about whether one spouse can take everything and leave the other with nothing. 


This is Part I of a three (3) part blog post intended to provide information about three (3) important factors that courts consider when dividing property: 1. Separate property vs. community property; 2. “Just and right” division; and 3. Common Justifications for disproportionate “just and right” division.  The categorization of property as separate or community is taken up in Part I, while Part II deals with the “just and right” division and Part III covers common justifications for disproportionate "just and right" divisions.


Separate Property vs. Community Property


The first thing a court will do is categorize all of the property you and your spouse own.  The two (2) categories that you should be familiar with are Separate Property and Community Property.  These concept are fairly straightforward and are, in fact, mostly what they sound like:  Separate property is everything you had before you were married, and community property is everything you and your spouse acquired during your marriage. 


At least that’s the presumption.


Certain property acquired during marriage may very well be separate property while other property that was separate property may very well have become community property during the marriage. 


For instance, all gifts, inheritances, and monetary awards for personal injuries are separate property regardless of the marital status of the recipient.  Additionally, separate property that becomes comingled with community property runs the risk of becoming community property.  The issue here is whether the specific separate property that was comingled can be precisely traced and identified throughout the entire time it was mixed with the community property, leading to its removal leaving no doubt that any separate property was also removed.


With all the property categorized the next step is dividing the property, which, in Texas, is done by a "just and right" division.  Stay tuned in for Parts II and III of this blog post where the topic will be the just and right division and its exceptions. 



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