As a divorce attorney during these times with COVID-19 Emergency Declarations, our divorce practice still represents numerous clients with issues involving property characterization which for the most part are misunderstood by the average litigant. Many times the case will involve complex and costly procedures tracing the assets on hand by the litigants at the time of divorce to attempt and establish the property as either community property or a party’s separate property.

What is “community property” in a divorce case in Texas?

Under our current divorce law in Texas, community property is property that is owned equally between the spouses. Whether or not “community property” exists depends on the marital relationship of the parties, when the marital relationship was created and when the marital relationship ended. In general, the property acquired by the spouses during the marital relationship is community property subject to a “fair and just” division by the Court with consideration given to the rights of the parties and to any children of the marriage.

What is “separate property” in a divorce case in Texas?

The Texas Family Code section 3.001 defines a party’s separate property as follows:
“A spouse’s separate property consists of:

1. The property owned or claimed by the spouse before the marriage;
2. The property acquired by the spouse during the marriage by gift, devise, or descent; and
3. The recovery for personal injuries sustained by the spouse during the marriage, except for any recovery for loss of earning capacity during the marriage.”

In Texas, the Texas Constitution, Article XVI, Section 15 defines separate property as follows:

Section 15. Separate and community property of husband and wife –

As a divorce attorney,  we have to explain to divorce litigants that all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of on spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property; and spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse.”

Is the property I had before the marriage protected in my divorce?

In Texas divorces, the Texas Court can not divest a spouse of their separate estate when the Court is dividing the marital estate in a divorce proceeding. The Court must award separate property to the party that owns the interest. This rule has evolved since its first application in the Eggemeyer case related to real property, until it was inclusive to all property in Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982). Even though the Court in Eggemeyer prohibits against a Court’s divestiture of a party’s separate property, the Court did recognize one exception being that the Court may set aside either spouse’s separate real property, its income, rents, or other revenues for the support of the children of the marriage.

Is marital counseling required before I get my divorce?

As a Divorce Attorney in Dallas County, Texas, we are  posed with questions regarding the grounds on which a person can get divorced in Texas.  The COVID-19 Emergency does not change the divorce laws in Texas.  Typically, under the Texas Family Code, most divorces are granted on the grounds of “Insupportability”. So, on filing a petition by either party to a marriage, the Court may grant a divorce without regard to “fault” by either party to the marriage if the marital relationship between the persons has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship between the parties and prevents any reasonable expectation of reconciliation.

Most court rulings in Texas hold that a person in a marital relationship does not have a legal duty to reconcile; although, there are some factions in Texas that are pushing for legislation which would require persons to complete counseling and extend the “60 day waiting period” before the Court will grant a divorce. However, currently the Legislature has in place the statutory grounds of “insupportability” to protect a person’s interest in seeking a divorce from their partner without requiring a person to make a showing of “fault”.  In todays COVID-19 Emergency, a lot of divorce case clients believe that the law has made exceptions to the rule of law regarding divorce – it has not.

What do I have to prove in my divorce action?

Regardless of the COVID-19 Emergency, in Texas, the “insupportability” grounds which is commonly referred to as a “no-fault” divorce has three elements under the Texas Family Code section 6.001. The person seeking a divorce has three statutory elements which the petitioner has the burden to establish the existence of when proving up the case in a Texas Court. Number 1, the person must establish that the marriage has become insupportable because of discord or conflict. Number 2, that the discord or conflict destroys the legitimate ends of the marriage. And number 3, that there is no reasonable expectation of reconciliation.

Under section 6.002 of the Texas Family Code, the Court may also grant a divorce in favor of one party if the other party is guilty of cruel treatment toward the complaining party of a nature that renders further living together insupportable. Insupportable means “incapable of being borne, unendurable, insufferable, intolerable”. Simple disagreements or trifling matters do not justify granting a divorce on the grounds of “cruelty”. Adultery can also be considered to be cruelty sufficient to support the granting of a divorce on that ground. Under section 6.003 of the Texas Family Code, the Court may grant a divorce in favor on one party if the other party has committed adultery.

What if my spouse committed adultery in my divorce case?

Texas Courts interpret “adultery” to mean the “voluntary sexual intercourse of a married person with one other not the spouse”. Furthermore, adultery is not limited to actions committed before the parties separated.  Conviction of a felony is another ground for divorce in Texas. Under section 6.004, a Texas Court may grant a divorce in favor of one party if during the marriage, the other party has been convicted of a felony and has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state; and, the party has not been pardoned. However, the Court may not grant a divorce against a spouse who was convicted on the testimony of the other spouse.

Do I need to file under a fault to get a divorce?

Regardless of the fault alleged to have occurred in the marital relationship and in a subsequent divorce proceeding, it is relatively simple and inexpensive to attain a divorce against a spouse in the State of Texas. On the filing of any party to a marriage, the Court will grant the party a divorce without regard to whether or not there was “fault” in the marriage if the marriage basically has become “insupportable” and there is no “reasonable expectation of reconciliation”.