Community vs. Separate Property

by Carrie E. Campbell, J.D.

Texas has the legacy and distinction of being a "community property" state. All property acquired or earned during the years of a marriage in Texas are presumed to be equally owned by both spouses. Only upon the ending of a marriage, either by death or divorce, is the property divided. The assumption is that a division of community property will be 50/50, although the court is charged with the duty of splitting the assets in a way that is "just and right, having due regard for the rights of each party and any children of the marriage." The application of this analysis can, but not often, result in something other than an equal split. For this reason, the outcome could differ depending on the judge assigned to the case. It should also be noted that any debts incurred during the course of a marriage are "community debts," and accordingly, the liabilities are shared/divided just as assets are.

"Separate property" refers to assets obtained before the marriage and/or assets acquired by gift or inheritance during a marriage IF those assets are kept separate from all community property and accounts. The means to prove the existence of separate property is frequently demonstrated by proving when title was acquired. The fact that only one name is on the title is not adequate. Furthermore, a claim can be made by a spouse for a reimbursement to the community accounts (before they are divided) for any expenses the community paid towards the mortgage, loan, maintenance, and/or improvements to separate property. For example, if a wife makes a down payment and buys a home one year before a twenty year marriage, and the mortgage during those 20 years is paid out of her wages (which are community property), then the wife is likely to be awarded the home as her separate property, but would owe the husband either cash or an offset against other properties to compensate him for ∏ of all the mortgage payments made during the marriage.

The calculations can quickly become very complicated when assets and debts are being divided, especially when the property and liabilities result during a long marriage. Add to the mathematics all the emotional intensity that accompanies the majority of deaths and divorces, and the need for objective assistance is obvious. The advice, guidance, and representation of an attorney is extremely important to protect your interests.

Enforcement of Child Support and/or Visitation Rights

by Carrie E. Campbell, J.D.

If a parent or custodian of a child is unable to gain the other parent's voluntary compliance with a judge's orders regarding child support and/or visitation rights, the primary recourse is to seek assistance from the courts to enforce its order. The process requires the filing of a Motion for Enforcement to re-open the court's file, then the court will issue and Order to Appear requiring the offending party to be in court on a given date and time to explain why he or she has not complied with the judge's instructions.

If a parent is found to have wrongly interfered with another's rights of visitation, then the judge may sentence the parent to jail, fine the parent and/or modify right of possession to avoid the problem reoccurring. The judge may use similar techniques of persuasion to enforce child support orders.

Moreover, in child support cases, the Office of the Attorney General may also become involved. The methods available to the state to enforce child support orders without going to court include: 
(1) withholding support from the non-custodial parent's paycheck
(2) intercepting and applying tax refund checks, lottery winnings or other money due from governmental agencies
(3) filing liens 
(4) suspending driver's professional, hunting and fishing licenses. The Attorney General may also file its own Motion for Enforcement to initiate court proceedings.

For the Attorney General's office to act, the child support must be past-due more than three months, and it will respond to any requests for enforcement when its caseloads permit it to do so. In all visitation enforcement and/or child support cases which require more immediate attention, it is necessary for persons to hire a private attorney. Often the prevailing party in an enforcement action will be able to obtain a judgment for attorneys fees if attorneys fees are incurred. 

For more information, you should contact the Child Support Division of the Attorney General's office or an attorney of your choice.