Different States and Marital Property Laws: Complications with Community Property
The distinction between community property and separate property is easy to determine when both parties have always been in Texas, but when one acquired property in another state, there can be complications with community property. With so many people moving to Plano and other cities in North Texas, it is no surprise people and their property come from many places with different marital property law laws. Texas marital property laws are based on the community property rules. Community property issues include how the property would be characterized in another state where property is situated or was acquired. Community property rules also apply to income earned for partial years of marriage.
After real and personal property is classified as separate or community, the community property is subject to division in Texas, in a manner that the court deems right and just, also considering the rights of both parties and any children born of the marriage. Note that while the term right and just may expect an exactly equal division, Texas marital property laws do not specifically state just and right means a 50/50 percent division.
Characterization of Property as Separate or Community
- Separate property is property owned by one of the spouses prior to marriage. It is also property acquired by a spouse during the marriage in the form of a gift, will or inheritance; also including property purchased during the marriage with separate funds.
- Community property is simply all property that is not separate property. Examples of community property include: salaries; wages and income generated from community and separate property; assets acquired during the marriage by cash payment or by credit, owned at the time of divorce.
Complicated Community Property Issues
The issue in Texas marital property law with one or more spouses married in other states moving to Texas and getting divorced is would the subject personal or real property been considered community property or separate property had the real or personal property been in Texas at the time it was acquired.
For example, if husband moved from Georgia to Texas with certain real and personal property in Georgia and then later gets a divorced, the property laws of the State of Georgia do not determine the characterization of property, rather the Texas Family Code directs us to ask whether the property would have been community property if the husband were domiciled in Texas at the time that property acquired. In other words, is there anything about the property that would make it separate property in Texas?
Thus, regardless of whatever the marital property laws may be in the state of Georgia, we ask if at the time the husband acquired the property, would it have been separate property under Texas law, i.e., it was owned by him before marriage, acquired during marriage by gift, will or inheritance, or purchased during the marriage with separate funds.
If the property would not be separate property in Texas, it is community property.
Separate Property Can Also be Property Exchanged or Partitioned by Agreement of Spouses
Separate property may also be the income and earnings of spouse’s separate property, and their wages and salaries on or after the first of the year in the same year the divorce was filed. This consideration also applies to the same money and income earned where the spouses were married part of the year.
Mark L. Scroggins Handles Complex Texas Marital Property Matters
Board-Certified* in family law by the Texas Board of Legal Specialization, Mark L. Scroggins has extensive experience in complex marital property matters. He and the talented trial attorneys, paralegals and support staff at Scroggins Legal can answer all your questions and help you understand your rights and options in divorce. To learn more about complications with community property and how you might be affected in a divorce, call Scroggins Legal in Plano for a consultation by dialing (469) 626-5220.