What Is Separate Property in a Divorce?

separate property

This article provides a discussion of what property constitutes separate property in a Texas divorce case.

Texas is a Community Property State

In order to understand separate property, you need to start with understanding that Texas is a community property state.

Any property, other than separate property, acquired by the spouses during marriage is community property. This includes income from wages, businesses, investments, retirement accounts and any other source.

In addition, there is a presumption under the law that everything you and your spouse own is community property.

Why is that important? It is important because only community property is subjection to division during a divorce case. A court divides community property under using the “just and right” legal standard.

What Is Separate Property?

There are three types of separate property under Texas laws.

The first type of separate property is property owned by either spouse prior to the marriage. You do not have to actually pay for the property prior to marriage, merely have an ownership interest. This is part of the inception of title doctrine in Texas.

The second type of separate property is any property that a spouse acquires during marriage from an inheritance or a gift. This property remains separate property at the time of divorce unless it was commingled with community property.

The third type of separate property is any money recovered for personal injuries suffered by a spouse during the marriage. However, any portion of the recovery that is attributable to lost wages is still considered community property.

A court does not have jurisdiction to divide separate property in a divorce case.

Impact of the Community Property Presumption

Remember – Texas law establishes a presumption that all property owned by the parties in a divorce case is community property.

This means that if you claim property as your separate property under one of the three categories above, then you have the burden of establishing the character of the property as separate property.

If you would like to schedule a consultation to discuss your divorce case, then please send me an e-mail or click here to schedule a consultation online.

Bryan Willis
What Is Separate Property in a Divorce?

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