Division of Property
One of the and most contentious issues in many divorces is how the parties will separate the
assets they have accumulated during the marriage.
It is natural for a person going through the dramatic (and sometimes tragic) experience of
divorce to feel embattled. When a person is in "battle mode" they tend to put on their
emotional armor. The helmet they put on may feel protective, but it actually leaves them
more vulnerable because it blocks the field of vision. Mainly, they can see only what is
immediately in front of them- that is, the hard fought battle of a temporary hearing or
mediation. They tend not to have a clear view of what lies ahead. Without this clear view, they
cannot see that the real victory lies well down the road, not in the minor skirmishes.
Meanwhile, they spend all their energy fighting only what is in front of their faces.
It is vitally important that when a person is embattled in a divorce to keep in mind that
although they have every right to fight for a fair division of the property, that in the end, it is
just stuff. One should not sacrifice one's peace of mind and sanity over material things. In
addition, there are so many tales of married couples who exhaust all their resources fighting a
legal battle over worthless trinkets that the story has almost become a cliche. Remember that
movie, the War of the Roses? In it, a divorcing couple fought so much over who would get the
marital home, that they invested their whole lives and fortunes in a pitched battle that had an
ironic and tragic end. It may seem like that movie was a farcical exaggeration, but the dirty
truth is, is that this Hollywood made fiction is not always that far from many people's actual
experience. You have to be smart when it comes to your finances, and you have to know when
to cut your losses and move on.
One of the most important things to know about property in Texas divorces is the definition of
the terms community property and separate property. If you are married and are seeking a
divorce in Texas, then everything you have is considered community property no matter whose
"name it is in". This is what we lawyers call a "rebuttable presumption", meaning that the
court assumes everything is community property, unless you can convince the court that it is
your own separate property.
TFC 3.001, carves out the legal definition of separate property. A spouse's separate property
is- (1) Property owned or claimed by the spouse before marriage; (2) Property acquired by the
spouse during marriage by gift, devise or descent; and (3) The recovery for personal injuries
sustained by the spouse during the marriage, except recovery for loss of earning capacity
during marriage.
In addition, the following are also considered separate property: (1) Gifts between spouses (but
you must meet very specific requirements to constitute a "gift"); (2) Written property
agreements between spouses (by virtual of a 1999 constitutional amendment- but there must
be an agreement in writing); and (3) Property obtained with the funds from separate property
(a complex process called "tracing" must be used to prove this).
Again, these are the exceptions to the rule that everything obtained during the marriage is
community. To call a piece of property one party's separate requires strict proof which must be
properly presented to the court.
As we begin to explore property division, we will get into more detail about what constitutes
sufficient proof and the certain rules such as "the community out first" rule, and the
"inception of title" rule that govern the determination of property division. For now, it is
enough to learn and remember that property battles should not be fought with our heads
down, blindly hacking away at small issues. Our visors should be up and our eyes on the the
whole field, and you need to be wise enough to know when it is time to boldly charge forward,
and when it is time to cut your losses and retreat. You need to determine early on how much
financial resource and emotional energy you want to spend on a fight over property, and have
the courage and discipline to expend no more than what makes sense.
One of the and most contentious issues in many divorces is how the parties will separate the
assets they have accumulated during the marriage.
It is natural for a person going through the dramatic (and sometimes tragic) experience of
divorce to feel embattled. When a person is in "battle mode" they tend to put on their
emotional armor. The helmet they put on may feel protective, but it actually leaves them
more vulnerable because it blocks the field of vision. Mainly, they can see only what is
immediately in front of them- that is, the hard fought battle of a temporary hearing or
mediation. They tend not to have a clear view of what lies ahead. Without this clear view, they
cannot see that the real victory lies well down the road, not in the minor skirmishes.
Meanwhile, they spend all their energy fighting only what is in front of their faces.
It is vitally important that when a person is embattled in a divorce to keep in mind that
although they have every right to fight for a fair division of the property, that in the end, it is
just stuff. One should not sacrifice one's peace of mind and sanity over material things. In
addition, there are so many tales of married couples who exhaust all their resources fighting a
legal battle over worthless trinkets that the story has almost become a cliche. Remember that
movie, the War of the Roses? In it, a divorcing couple fought so much over who would get the
marital home, that they invested their whole lives and fortunes in a pitched battle that had an
ironic and tragic end. It may seem like that movie was a farcical exaggeration, but the dirty
truth is, is that this Hollywood made fiction is not always that far from many people's actual
experience. You have to be smart when it comes to your finances, and you have to know when
to cut your losses and move on.
One of the most important things to know about property in Texas divorces is the definition of
the terms community property and separate property. If you are married and are seeking a
divorce in Texas, then everything you have is considered community property no matter whose
"name it is in". This is what we lawyers call a "rebuttable presumption", meaning that the
court assumes everything is community property, unless you can convince the court that it is
your own separate property.
TFC 3.001, carves out the legal definition of separate property. A spouse's separate property
is- (1) Property owned or claimed by the spouse before marriage; (2) Property acquired by the
spouse during marriage by gift, devise or descent; and (3) The recovery for personal injuries
sustained by the spouse during the marriage, except recovery for loss of earning capacity
during marriage.
In addition, the following are also considered separate property: (1) Gifts between spouses (but
you must meet very specific requirements to constitute a "gift"); (2) Written property
agreements between spouses (by virtual of a 1999 constitutional amendment- but there must
be an agreement in writing); and (3) Property obtained with the funds from separate property
(a complex process called "tracing" must be used to prove this).
Again, these are the exceptions to the rule that everything obtained during the marriage is
community. To call a piece of property one party's separate requires strict proof which must be
properly presented to the court.
As we begin to explore property division, we will get into more detail about what constitutes
sufficient proof and the certain rules such as "the community out first" rule, and the
"inception of title" rule that govern the determination of property division. For now, it is
enough to learn and remember that property battles should not be fought with our heads
down, blindly hacking away at small issues. Our visors should be up and our eyes on the the
whole field, and you need to be wise enough to know when it is time to boldly charge forward,
and when it is time to cut your losses and retreat. You need to determine early on how much
financial resource and emotional energy you want to spend on a fight over property, and have
the courage and discipline to expend no more than what makes sense.
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