Texas has two general categories of property; community property and separate property. Separate property is property acquired prior to marriage, or during marriage by gift, inheritance, or from personal injury recovery. Community property is all property acquired during the marriage, except for separate property. It is extremely important that property is properly characterized prior to a divorce proceeding, because the only property that a court can divide at the time of divorce is community property.
All property possessed by either spouse during, or on dissolution of marriage, is presumed to be community property, unless it is proven to be separate property. The burden of proof rests on the spouse who wishes to declare the property separate. That spouse must establish with clear and convincing evidence that a particular item is separate property, and not community property.
Under Texas law, a court shall order a division of the community assets and liabilities in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Once property is established with the Court as separate property, it will not be subject to division in the divorce.