What’s Yours is Mine; What’s Mine is Not Yours


Aside from custody battles, generally nothing is messier in a divorce than the division of property. Sometimes two spouses are able to come to an agreement between themselves, but other times two individuals can find absolutely no compromise and the only means of deciding who gets what comes down to the order set by the court. If you are in the midst of the divorce, or even at the early stages still considering a divorce, take some time to learn what a property division may entail for you and your spouse.

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In a divorce, the court has discretion to divide the property of the spouses. It is critical for you to understand this authority of the court does not require it to split the property 50/50. Equally important is that you understand the court has no power to distribute the personal property—or the “Separate Property”—of one spouse to the other spouse. In other words, the only property that can be divided and distributed amongst the spouses is Community Property. Unsure what the difference between Separate and Community Property is? Not a problem, we can walk you through the basics to distinguish between the two types in a few short bullet points below. Use these bullet points as a general guideline, the list is a basic summary and is not meant to serve as a substitute to having an experienced family law attorney analyze your marital assets and individual circumstances.

What qualifies as Separate Property?

  • Any property acquired BEFORE MARRIAGE.
  • Some property acquired during marriage, but only in specific circumstances:
    • Any property acquired by Gift during the marriage.
    • Any property acquired by Inheritance or Devise during the marriage.
    • The interest, income, or profit earned on a gift from one spouse to the other.
    • Income earned during the marriage from separate property interests in oil or gas.

What qualifies as Community Property?

  • Any property that does not qualify as Separate Property.

This is a very simplified and condensed summary of the manner in which a court distinguishes between Separate and Community Property. See below for a few more general notes about Community Property.

Some notes about Community Property:

  1. It includes income, profit, or interest that is gained during the marriage from separate property (Remember: this excludes any earnings on a gift between spouses).
  2. Includes earnings not yet realized, such as earnings on a 401k or retirement accounts (Note: the court considers any earnings on a 401k DURING the marriage as “community property” and any earnings on a 401k before and after the marriage as “separate property”).
  3. Includes earnings by a corporation or other company owned by one spouse if earned during the marriage.

Now that you know a little about the difference between the two types of property, remember that the court will only be able to distribute the Community Property from the marital estate. Separate Property will not come into the division order at all. But it can still be important to understand exactly what the Separate Property looks like for each spouse. This is because the court’s job will be to make a “just and right” or “just and equitable” division of the property. This simply means what will be fair to both parties. Sometimes this can mean a pretty even split. At other times, a court may consider any “at-fault” reasons for a divorce and can award very uneven distributions to the parties. Another reason for an uneven split may be the gap in earning potential between two spouses. Because different factors can affect how even or uneven a division order comes out, an experienced family law attorney will seek out the specific facts of your marital estate and fight to introduce factors in your favor to represent your needs adequately before the court. You don’t have to go through this process alone. We are here to help you get the most favorable result you are entitled to under law. Let us help the court understand why a division order in your favor is what would be “just and right.”

The Law Offices of Carroll & Hinojosa, PLLC
2117 Pat Booker Rd.
Suite B.
Universal City, TX 78148

(210) 650-9074   

Serving Abernathy Texas, as well as the rest of fine cities in the great state of Texas.