Termination of marital relations usually becomes a real test for future ex-spouses. One of the most controversial issues can be dividing assets in divorce. To share ownership in Texas, parties first need to determine the list of separate and community property. It is often complicated by the fact that spouses separated a long time ago but decided to submit papers for divorce much later.
How is property divided in a divorce, and what effect will the date of separation have on the division? It will depend on several factors. We will discuss them in this article and analyze whether the other party can claim the property you purchase separately after you file for divorce but before it is finalized.
What Is Considered Marital Property?
To start the division of property, you must first define what is considered a marital asset; according to the definition of marital property stated in TFC 3.002, it is all the property acquired during marriage by both spouses. Its list may include cars, real estate, jewelry, and more. It does not matter whose name appears on the title deeds. If parties purchased it during marriage, it is the community property belonging to both spouses.
What happens to assets in a divorce in Texas depends on whether they are your separate or community possessions. According to the general rule defined in Chapter 7 of the TFC, the community property of spouses will be divided in a manner that the court considers just and right, which may not necessarily be a 50/50 split. Separate assets of parties will not be shared. In uncontested cases, spouses can determine the divorce terms themselves and indicate how they will split their assets in the Final Decree of Divorce.
What Is Considered Separate Property?
Separate assets and debts of spouses are not subject to financial split in divorce. According to TFC 3.001, their list includes the property that:
- was owned by each of the spouses before marriage;
- was acquired by either party as an inheritance, gift, or invention during the marriage;
- was a compensation for personal injuries caused to one of the spouses during the marriage.
Income from the use of separate property, such as dividends from shares or rent for a house, will also not be divided and will be considered the personal property of each party.
How are finances split in a divorce if your spouse has separate assets but you contributed to their value during the marriage? If you can prove that you increased the cost of the other party’s property or kept it during your marital life, this may affect the result of its division. For example, the court may decide to compensate you for a part of the funds you invested.
Can property bought by one of the spouses during marriage be considered a separate one? In most cases, it will always be community property. The exception may be the presence of a prenuptial or postnuptial agreement in which spouses specify that some particular part of the assets obtained during the marriage will be their separate property. In all other cases, everything purchased during marital life will be shared in a divorce.
How Is the Date of Separation Determined?
To show the court how long you have not lived as a couple, you can use the contract you entered into when you separated. Given that Texas does not recognize legal separation, spouses rarely conclude such agreements. Alternatively, you can use the witness’s testimony or provide documents confirming that you lived separately, such as a lease agreement for another house.
Parties can terminate marital relations regardless of how long they have been separated. One of the spouses can file for divorce even if both of them live in the same house. The only exception to this rule is the ground for divorce based on a separate residence. According to TFC 6.006, living apart for 3 years can be one of the legal reasons for the dissolution of marriage in the state.
You need to indicate when your relationship ended in a Petition for Divorce, but sometimes defining a separation date for divorce can be difficult. It often applies to cases where parties stopped living together a long time ago but filed for divorce only a few years later.
In Texas, the separation date in most cases may not affect the divorce outcome. However, it can be important when determining the list of joint property and dividing assets.
Your assets and debts will be distributed according to your arrangements or a court order that you will need to follow. How long after divorce can I claim property? You can appeal the judge’s decision to modify a Final Decree of Divorce within 30 days from the date of its issuance. However, you cannot require any assets your ex-spouse acquired after the divorce process was finalized.
How Separation Status Can Affect Property Distribution
Since Texas neither recognizes legal separation nor has a mandatory separation period, the fact you started living apart will rarely affect the division of property in a divorce.
In most cases, separation of property during marriage into community and personal will take place according to a general rule: if spouses buy it while married, it becomes common to both of them and will be distributed during the dissolution of marriage. In other words, the determining factor will not be the date of separation but the date of divorce.
An exception may be the conclusion of a postnuptial agreement in which you detail what property will be determined as separate and joint. You can sign it before or after you decide to move away and live apart from your spouse. The following sections will analyze how separation will affect the division of assets obtained at different stages of the divorce process.
Property Acquired After the Separation Date
Parties who decide to dissolve the marital relations are considered a married couple before the divorce is officially granted. It means that all property acquired after separation but before divorce will be their joint ownership and will be subject to division in court. There are also exceptions when spouses decide to live separately and conclude an agreement in which they specify that the property acquired in the future will be the personal belonging of each party.
Although there is no such term as legal separation in Texas, you can still enter into a contract if you are not yet ready to divorce but already want to separate. When you file for dissolution of marriage, the court can take it into account and divide your property according to your agreements.
Can I buy a house while separated? Yes, you can, but your spouse will be considered a joint owner if there is no postnuptial agreement. The fact that you resided apart, regardless of the date of separation, will not change the state’s property division laws and will not affect the distribution of community assets, liabilities, and debts.
Property Acquired After the Divorce Process Starts
Until the divorce is finalized, spouses remain co-owners of community ownership, and all property bought during separation or after they filed for divorce will be considered their joint one and will be divided between them fairly.
They can determine other conditions of financial responsibility during separation and divorce process with the help of an agreement. However, if it is not concluded, then regardless of whether they have already submitted a Petition for Divorce, everything spouses purchase will be subject to division in court.
Till the judge signs the Final Decree of Divorce, either spouse can still claim the part of assets that were bought by the other party during the dissolution process.
Property Acquired After the Divorce Is Final
A divorce is final after all the marriage termination issues have been resolved and approved by the judge. Parties can buy property after divorce, and it will be considered their separate ownership, so none of them can claim it.
Your ex will no longer co-own it because your marriage has ended, and the community property rule will no longer apply. Your ex-spouse can request to change the terms of property division after divorce, but this can only be related to the assets you acquired during the marriage. If you managed to buy a house after the divorce and your ex files an appeal on the decree of divorce, this house will not be added to the list of properties that need to be divided and will be considered your separate ownership.
To sum up, there is no legal separation or mandatory separation period for divorce in Texas. Given this fact, the date when spouses separate will not have a decisive effect on the division of assets during a divorce.
All the property obtained by parties during the marriage is deemed their joint one and must be shared between them fairly. Only inventions, gifts, inheritances, and property that you own before marriage or begin to possess after the divorce will be your separate assets.
