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Separate Property vs. Community Property: what’s his, mine, and ours

When spouses go through a divorce questions arises that generally are not asked when all is well. The questions are: What is legally mine? What is theirs? What is ours? The Court automatically takes the position that ALL property in community property. Meaning everything is “ours”. However, the position that everything is community property is changed once it is shown the property came from one of three sources (1) one of the spouses owned the property before the marriage, (2) the property was given to one of the spouses by gift, devise, or descent, or (3) the property was acquired through a personal injury settlement for pain and suffering. Everything else, stays community property. Yes, that means every dollar you earned, all the money collecting interest in your 401(k), the vehicle that’s only in your name, all of those things are community property, they are “ours” no matter who earned it or how much or little the other spouse contributed to the financial stability of the marriage. In fact, the statutory definition of community property is: all property, other than separate property, acquired by either spouse during the marriage.

With this knowledge people then ask “how much of the 401k, bank accounts, etc., will the other spouse get?” The answer is an equitable portion. To some judges equitable means 50/50. To others equitable means 60/40. In rare occasions it could mean 87/13. It all depends on the circumstances of the case.

At the Christiansen Law Firm we help our clients who are going through divorce understand the difference between separate and community property so that they can make informed decisions when making and considering offers to finalize their divorce. If you are in need of a divorce consultation we would be happy to provide you one at no cost. Make an appointment with us today.

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810 S. Highway 6
Suite 210
Houston, Texas 77079
Phone: 281-579-2800
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San Antonio, Texas 78216
Phone: 210-829-0101
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