Marital Property Characterization
For property to be divided in a divorce, they must be characterized as either separate or community property.
The Texas Constitution lays the foundation for Texans marital property rights and puts certain issues, such as the core definition of separate property, beyond the reach of the legislature. Regarding this, The Texas Constitution says:
All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property; spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.
Property owned before marriage or acquired after marriage by gift, devise or descent, is separate.? By implication, everything else is community property.
Because Texas is a community property state, most people assume that means Texas is a 50/50 state. So, does this mean the parties involved in a divorce split their belongings down the middle, and each gets half?
No. The court can only divide community property, it cannot divide separate property, hence the need for characterization of property before it can be divided. This is where you need a skilled and experienced family law attorney by your side.? The court then divides the community property in what the judge deems to be a fair and equitable distribution of the property.? This does not mean that each party gets 50% of the community property, despite common misconception.
The Texas Constitution speaks in terms of property when it discusses characterization. Simply put, the concept of characterization laid out in the Texas Constitution relates to property, not liability. Whether debt can be characterized as community or separate is an important issue. For more information on the division of debt click here: https://scrogginslawgroup.com/divorce-lawyer/property-division-lawyers/
In the Texas Constitution, the term property has been interpreted so that it extends to every species of valuable right and interest. The Texas Supreme Court stated [i]n using the word property, the framers of the constitution apparently had in mind property which could be given, bought and sold, and passed by will or by inheritance.
The Texas Constitution discusses the concept of character only in relation to person who are about to marry and spouses.
Before a marriage takes place, a person owns property with no character.
After a marriage takes place, a person owns community, separate, or mixed property.? Parties can determine how they want their property to be characterized? should a divorce occur in the future before their marriage by executing a prenuptial agreement, or after their marriage by executing a postnuptial agreement. In a pre or post nuptial agreement the parties can dictate how their property is characterized.
Upon divorce, the divorce court divides the parties? community property, typically awarding it as the ?sole and separate property of each spouse.
After the divorce there is no community.
If you have complex issues regarding characterization of property including intellectual property, divided interests in business ventures, and limited or general partnerships, click here for a more detailed discussion. ?YouTube
Everything is important in a divorce. Characterizing your property correctly is crucial. Seek the advice of a trusted family law expert to help. Mark L. Scroggins of Scroggins Law Group has been practicing law in North Texas for over 25 years. Mr. Scroggins is a family law expert, board-certified by the Texas Board of Legal Specialization in family law. If you are considering divorce, please contact us at 214-469-3100, or visit us online at www.slgstagingdev.wpengine.com today.
