In Texas, marital property can be divided into three basic categories: separate property, community property and mixed property. All property in a marriage is presumed to be community property, which means belonging to the marriage.
However, a party to a divorce can rebut the community property presumption by showing that the property is that individual’s separate property. It is a heavy burden to show that property is separate property, however it can be done with sufficient documentation and evidence.
Texas defines separate property as property “claimed or owned” before the marriage; property acquired by gift, devise or descent; and recovery for personal injuries sustained by a spouse during marriage, excluding any recovery for loss of earning capacity awarded to a spouse during marriage.
Lastly, certain property can be mixed community and separate property when the community estate and the separate estate of one spouse both have an interest in the asset. If the property is determined to be mixed the separate or community estate may have a right to be reimbursed from the other estate.
Along those same lines, debts are also categorized. More specifically, if a debt was incurred during marriage, it is presumed to be a community debt. However, this presumption can be rebutted by showing that a lender agreed to look solely to one spouse’s estate to satisfy the debt.
After determining the character of the assets of debts, the court will divide community property based on what is “just and right.” The “just and right” standard takes into consideration numerous fact-specific factors which are weighed by the court.
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