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Separate Property vs. Community Property

Posted by Chris Peterson | Feb 10, 2013 | 0 Comments

Separate Property vs. Community Property

Separate Property vs. Community PropertyA common question that occurs in divorce disputes is separate property vs. community property. Whether you can recover a portion of certain asset is often determined by whether that asset is classified as separate property or community property. As your divorce attorney in Conroe can explain, the definitions of separate property and community property are rather straightforward, but their application can often be difficult.

Separate Property Defined

The Texas Family Code defines separate property as:

  • property owned or claimed by the spouse before marriage;
  • property acquired by the spouse during marriage by gift, devise, or descent; and
  • the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Community Property

In essence, all other property acquired by one or both spouses during marriage is considered community property. This includes income earned on separate property during the marriage. The Texas Family Code states that “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” In a divorce, clear and convincing evidence as to why property should be considered separate is required to establish separate property designations.

Often community property is commingled with separate property.  In those instances, it may be possible to trace the assets purchased with separate property and to still be awarded those assets.  It is also often the case that separate property may have been used to improve a community property asset (like remodeling a community property home with separate property funds).  In those instances, there may be a claim made to reimburse the separate property account for those funds spent improving the community property.

For Further Help

Determining whether something is separate property or community property may seem simple, but it can often be a difficult undertaking when assets have been commingled together during marriage. Often an experienced divorce attorney can be helpful in sorting through this issue. If you need a divorce attorney in Conroe Texas, contact Peterson Law Group by phone at 936-337-4681 or through our online contact form.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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