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As previously mentioned, all marital property is characterized as separate, community, or mixed. Community property is what is most often thought of as the marital estate. Community property is that property owned by the spouses which is subject to division in a divorce.
Generally, community property is property that was bought or acquired during the marriage. Each spouse would be entitled to a portion of that community property in a divorce.
Community property is most often made up of any property acquired during the marriage. This includes real estate bought during the marriage and all income earned during the marriage. Community property can also include separate property that is part of a conversion agreement between the spouses to convert the separate property to community property.
The Texas Family Code creates a legal presumption that all property owned or possessed by the spouses upon divorce is community property. If property is not community property it is up to the spouse claiming separate property to show why the property should be considered separate and not community property.
The distinction between what is community and what is separate property is important. What may be presumed to be community property may in fact be separate and thus not subject to division. Additionally, it is important that all community property is itemized and appraised so that the parties can divide the property properly.
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