In a community property state like Texas, marital property is distributed equally between divorcing spouses. However, not all property owned by one or both spouses is considered marital property. Courts will consider several factors when determining whether an asset should be considered marital or separate property, such as when the property was acquired and who paid for it.
Marital property v. separate property
Each piece of property owned by either your or your spouse will be categorized as marital or separate property. Only community property will be divided between divorcing spouses. Separate property will remain with the spouse who owns it.
- Marital/community property: Property acquired during the marriage or with marital funds.
- Separate property: Property purchased or acquired by one spouse before the marriage.
If separate property and community property mix, the property may be considered ‘commingled’ and therefore be treated as community property.
For example, if you bought a house prior to your marriage, but both you and your spouse make mortgage payments and contribute to the household, the house may be considered community property.
Avoid property division disputes with a prenup/postnup
The best way to avoid potential property disputes is to establish a prenuptial or post-nuptial agreement with your spouse during the marriage. That way you and your spouse can specify how your assets will be divided if you ever get a divorce. A divorce attorney specializing in family law matters can help you draft a prenuptial or postnuptial agreement that addresses all property division issues that may arise. This agreement will likely speed up the divorce process and save you many lengthy disputes with your ex.
