Texas Marital Property - What is Separate and Community Property?
Texas marital property has rich history with roots from the Spanish legal tradition. Texas is also unique in that its marital property rights are constitutionally based. Article 15 Section 16 of the Texas Constitution defines separate and community property, and the Texas Family Code also provides guidance as to the differences between separate and community property.
Texas Family Code Section 3.002 defines community property as the property, other than separate property, acquired by either spouse during marriage. This naturally begs the question, What is separate property?
According to Texas Family Code 3.001, 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.
Q: Is VA Disability awarded for service before marriage, separate property in Texas? If so what is the reference?
A: In Texas we characterize property upon inception of title. In "English" that means, when a spouse first acquired rights to that property. The disability payments you received prior to the date you were married are your separate property, but any disability payments received after marriage are most likely community in nature.
Q: I filed for divorce three days after my husband was released from prison after serving 12 years. I did not know he was out untill we looked for an address to serve him. He answered and filed a counter suit but he has not been in the State of Texas nor Harris County for the past 12 years and his petition for divorce says that he has. My question is whether he can file a counter suit if he has not resided in Harris County for the past 90 days.
A: Yes, your spouse may file a counter petition regardless of whether he resides in Harris County or in the state. By filing a counter petition he has essentially made an appearance in the case. You could file special exceptions noting the errors in his counter petition, but that does not provide a whole lot of mileage.