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How to Effectively Guard Yourself Against Community Property Issues 2


One thing is for certain, if you want to avoid the complications from issues associated with community property, you need to know more about it. When you have ample knowledge of how it works and how to manage it properly, you’d be able to avoid the nasty complications of community property issues.

If you are thinking of or in the process of getting a divorce, you might have come across ‘community property.’ These two words can play a huge role in your divorce but you may not know it quite well yet.

A lot of questions should be on your mind when you cross paths with community property for the first time. For example, questions like: “How should I know which ones are community property and which aren’t?” “Is everything in the house considered as community property?” “Is it possible to have properties with you as the sole owner?”

Separate Property and Community Property

When you are asking about stuff that you can call ‘yours alone,’ you can refer to that as separate property. Basically, according to the Texas Family Code, separate property are things that are owned by one spouse before the marriage. It can also be a property that one spouse received as a gift or inheritance during the course of the marriage, and recovery of personal losses and injuries.

It might sound so complicated so we’ll make it simpler for you. Anything you own before you got married, any gifts or any property or money you acquired from a lawsuit is separate property – meaning, it’s totally yours. Your spouse will not have any rights to such properties in the event that you decide to go for a divorce.

Now that you know what separate property is, understanding community property is much easier. Community property refers to the rest of the properties you have that cannot be classified as separate property. This includes properties that you purchased during your marriage as well as savings accounts you’ve opened during your marriage.

You really need to know the sharp distinction between community property and separate property because when you get a divorce, you’re going to divide up your marital properties. Knowing which ones are separate property and which ones are community property will make the process a lot easier.

Separate property doesn’t need to be divided between the two of you during a divorce – it’s simply personal property. However, you will need to prove that the properties you claim as separate property are really that.

Drawing a Line Between Community Property and Separate Property

In court, you will really need to indicate and prove which possessions belong to separate and community properties. Despite knowing the definition of these words, applying it in real life, on real wealth and possessions can be extremely complicated and stressful.

There are also ‘fine print’ to the simplified definition we mentioned above, which comes in the form of sub-rules.

One of these sub-rules includes the Presumption of Community Property. This means that the things you own on the day you file for divorce are automatically presumed as community property. Even if one of your possessions include a baseball card collection that you’ve had since you were a kid, it is still presumed as community property.

Since everything is presumed as such, you need to prove otherwise when necessary. Your spouse may not fight for every possession you have in your marital home, but there is still a possibility that he or she will contest your claim of separate property on at least some of the items.

If you, unfortunately, find yourself in such a situation, you will need a good family law attorney to help you out and ample proof to show to the judge to support your claims.

Establishing Separate Property Claims

The first thing you’d need to do in order to establish separate property is to find the dates when items and properties were purchased. The spouse who can claim ownership – with enough evidence at that – will likely be awarded that property.

You can also use a method called tracing to establish separate property. If you have a property before you got married that you sold during the marriage, tracing means finding out where the funds went.

The property you purchased using the money from the sale of a property you had before the marriage may still be considered as separate property. There is a huge chance that the court will award the property to you, as long as you can provide details of how the money was used.

The problem is when the money you got from the sale of your property acquired before the marriage was deposited in a joint account. It will be more difficult to prove your claim because it would be highly likely that the money is mixed with your spouse’s. If you have the accurate account history, it could still work though.

In conclusion, dealing with community property issues can be a pain and you will definitely need the advice of an experienced attorney in order to properly establish your claims.

Concerned about your financial matters and other property matters related to your divorce? Here are some other articles that might be helpful:

The Worst Financial Mistakes You Can Make During A Divorce

Things You Didn’t Know About Debts in a Texas Divorce

Dealing With Your Spouse’s Hidden Assets in a Texas Divorce

Divorcing Your Mortgage

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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