Please note that the following is not intended to be legal advice and should not take the place of representation by an attorney. You should contact an attorney to discuss the specifics of your situation.

Most people have heard that Texas is a “community property” state, but don’t really understand what that means. There is a presumption in the State of Texas that all property that is accumulated during a marriage is assumed to be the property of both the husband and wife. The same is true of any debt that was acquired during the time the parties were married. Both community assets, and debt, must be divided during the parties divorce. Separate property must also be considered in a divorce. This is generally property that was owned by one of the parties before they were married, or was given to one of the parties during the marriage by gift or through an inheritance. It is important in a divorce to keep documentation showing you owned an asset before marriage, or it was a gift or inheritance, if you want that asset to be confirmed as your separate property during a divorce.

If the parties are unable to reach an agreement on their own, community property in a divorce is divided in a manner that the judge “deems just and right, having due regard for the rights of each party and any children of the marriage.” The judge may start with the assumption that property, and debt, will be divided 50/50 but may consider additional factors such as fault in the breakup of the marriage, and disparity in the earning ability of the spouses when making the final decision.

A pre-marital agreement can be used in Texas to address the rights and obligations of each of the parties in any of the property that is acquired during the marriage. The agreement is a contract that can change the presumptions about community and separate property and gives the parties the freedom to arrange their marital property and property rights as they desire, not as governed by the Texas Family Code. The most significant limitation to a pre-marital agreement, is that it may not adversely affect child support. Parties may also contractually change the character of their property after the marriage with a marital property agreement that partitions and exchanges between themselves all or part of their community property.

Common Law Marriage

Common law marriage is an area of family law that is often very confusing for people. Contrary to popular opinion, there is no minimum time that you must live together to automatically be considered “common law” married. Texas courts will say you are “common law” married if you have lived together in the State of Texas, hold yourselves out to others as husband and wife, and have a proven intent to be married. This is a much harder test to pass than merely living together for a certain length of time. You do not need a divorce from a common law marriage if you have been separated for over two years. However, if it has been less than two years, and you have property to divide, you should file for divorce so the Court can divide the property.