Typically, unless you are going through or have gone through a divorce, you probably haven’t given much thought to the term “community property” or “equitable property.” If you are thinking about estate planning, you should understand what “community property” and “equitable property” really mean. Most states follow the common law regime of equitable property during divorce and for estate planning purposes. However, like a handful of other states, Texas is a minority community property jurisdiction.
Courts in community property jurisdictions consider that all property acquired during marriage as joint property of both spouses. Unlike equitable distribution jurisdictions, community property jurisdictions view spouses as equal owners of community property, regardless of how they hold title to their property.
In equitable distribution states, courts divide marital property and debts equitably, not necessarily equally. Spouses in community property jurisdictions own property acquired during marriage equally. Similarly, they are jointly responsible for their marital debts. However, in equitable distribution states, there is no presumption of equal ownership in divorce, and judges can divide marital assets and debts using an equitable methodology. In many cases, fault may play a big role in how courts ultimately divide marital property and debts in the absence of a property settlement agreement.
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