Texas statutes, rather than providing a definition of what constitutes community property, defines the term in the negative, by stating what is not community property.
“Community property consists of the property, other than separate property, acquired by either spouse during marriage.” Texas Family Code § 3.002.
“A spouse’s separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.”
Texas Family Code § 3.001.
“In a decree of divorce or annulment, the court shall order a division of the estate of the parties 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.”
Texas Family Code § 7.001.
With such a subjective and arbitrary standard, how could it be otherwise?
Appeals are extremely expensive. Furthermore, an appellate court will presume that the divorce court’s order dividing property is just and right.
In other words, in most cases, it probably will not be worth the time and expense to appeal an “unjust or wrong” divorce court property division order.
But there is good news: Texas couples — who plan ahead — can prevent Texas divorce courts from ever dividing their marital property and — at the same time — each spouse can protect their property from the claims any future creditors might acquire against their spouse’s property.
Asset protection planning of this sort is not a “one-size-fits-all” type of proposition, nor is it obtainable by downloading a “fill-in-the-blanks” legal form from the Internet.
Rather, legitimate asset protection planning involves an individualized evaluation of a couple’s situation, followed by the creation and implementation of an appropriate — customized — asset protection plan that is best-suited to the couple’s specific situation.
“Sounds expensive,” you might say. Perhaps. Until you consider the cost of litigating a case from filing, through pre-trial discovery, through settlement negotiations, and then through trial.
Oh, and don’t forget all those attorney fees you’ll need to pay your lawyer, regardless of whether you win or lose.
And even if you win in the trial court, the other side can still appeal.
Considering the high cost of litigation — both in dollars and in emotional well-being — a little asset protection planning probably isn’t so expensive after all.