It is not uncommon for spouses to separate and live apart before officially filing for divorce. Efforts to reconcile and insufficient funds are some of the reasons why spouses delay the petition. The separation period, however, can cause confusion during the property division proceeding. Are properties acquired during the separation considered marital assets?
Texas rules on division of property
The general rule in a Texas divorce is that assets acquired after the wedding ceremony and before filing the petition for divorce are marital property.
Unlike some states, Texas does not recognize legal separation. Even if spouses live in different residences, they are still married under the law. So, what happens to properties and debts each spouse acquired during that time? The state follows the presumption of community property and assets acquired during the marriage will be subject to the division of community property during the divorce proceeding. Of course, parties can refute this presumption by providing clear and convincing evidence that an asset is a separate property.
What if the other spouse lives outside of Texas?
Even if one of the spouses relocates to another state, they will still be subject to Texas’ rules on property division. If the court deems it just and right, the following assets still fall under the category of marital property despite one of the spouses residing in another state:
- Property acquired by a spouse living in another state that would qualify as community property if they acquired the same while residing in Texas
- Property acquired and exchanged to real or personal property by a spouse living in another state that would qualify as community property if they acquired the same while residing in Texas
Property division is a complex process. This is especially true when special circumstances such as prior physical separation exist in the divorce. Understanding the rules on property division can guide parties during the process.