In Texas, there is a presumption that all property acquired during the marriage is community property. However, you can rebut this presumption through clear and convincing evidence of the character of a particular asset. Separate Property is considered any property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or by inheritance. It can also include monies recovered for personal injuries. Please be advised that the Court cannot divide an individual’s separate property in a divorce proceeding.
The Court can only divide the community assets and community liabilities in a “just and right” division. Depending on the circumstances, a Court has the ability to award more or less community property including community liabilities to one of the spouses. So, the parties’ property may not always be divided in a 50- 50 split.
In these proceedings, the Court can consider a variety of factors such as:
- Fault in the break-up of the marriage;
- Differences in earning capacities and education;
- Age of the parties;
- Health of the parties;
- Any special needs of the parties;
- Separate property available to either spouse;
Each party must submit an inventory and appraisal that identifies all property, assets, accounts, and their value, as well as all liabilities. The inventory also lists any separate property either party is claiming. Based on the evidence, the Court will determine the value of the party’s property and liabilities.
There are so many ways to determine property and you should discuss this matter in detail with your attorney.