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Divorce in A Community Property State

Texas is a community property state. This fact has very little bearing on most aspects of someone's life. For someone who is considering divorce, however, the fact that Texas is a community property state is very important. Below we will discuss the impact of Texas' community property laws on divorce.

What is community property?

Under Texas law, community property is defined as all property acquired by married couples during the marriage, except for separate property. Separate property is defined as:

  • Property a spouse owned prior to marriage

  • Gifts and inheritances

  • Personal injury recoveries, excluding damages acquired for loss of earning capacity during the marriage.

Most importantly, Texas law presumes that all property spouses own during the marriage is community property. A spouse can prove that property is separate property, but only by presenting "clear and convincing evidence" of this fact. The clear and convincing standard of evidence is a higher standard than what is typically needed in civil courts.

Any property a spouse proves to be separate property is kept by the spouse. All community property is to be divided "in a manner the court deems just and right", per Texas law.

Practically speaking, this means that judges have substantial latitude in dividing community property. Consequently, most parties in divorce prefer to reach some kind of property settlement, rather than placing the matter in the hands of a judge. Furthermore, a properly-executed prenuptial or postnuptial agreement could also help determine the distribution of community property.

What about debt?

Texas laws surrounding debt are more complex. In Texas, spouses are only liable for their spouse's debts in the following situations:

  • The spouse is acting as an agent of the other spouse

  • For "necessaries" such as medical care, shelter and food

Generally speaking, separate property cannot be used to pay the other spouse's debts. Community property that one spouse controls or manages cannot be used to pay the other spouse's debts either. Depending on the circumstances, marital debt can be an extremely challenging topic that will have a great impact on both divorcing spouses' lives. Given the magnitude of changes in a person's life following divorce, it is critical to enlist the services of experienced legal counsel as early as possible.

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