Keeping Family Treasures out of the Marital Estate

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Brett Pritchard Law

Updated on August 22, 2022

Texas is a community property state. Both spouses own all property acquired by one or both of them during their marriage. Texas law presumes that any property acquired during the marriage will be community property. However, some of that property will be excluded from this definition.

To protect your property, you need the help of a knowledgeable Killeen divorce lawyer. Contact The Law Office of Brett H. Pritchard now for a FREE case review.

What Kinds of Marital Property Are Recognized in Texas?

Texas recognizes two kinds of property in its matrimonial laws. First, as noted above, the community property is owned equally by the two spouses. Usually, anything acquired during the marriage will fall into this category.

On the other hand, property solely owned by one spouse is called separate property and may have been obtained before or during the marriage. To continue as separate property, the property must be identifiable as separate from the marital estate.

What Is Separate Property in Texas?

Separate property is property owned by only one spouse. Separate property may include either property owned by that spouse before the marriage or acquired by gift, inheritance, or recovery for certain losses by that spouse. Separate property is not subject to the rules governing community property division.

How Does This Apply to Particular Property?

Suppose a spouse received a particular property (a family heirloom or similar item) by gift or inheritance during the marriage. In that case, the receiving spouse must keep records showing that the gift or inheritance was intended to be separate property.

The spouse that owns the property should also be careful not to commingle it with marital property or allow any confusion about ownership to develop. Owners should also be aware that any income deriving from a separate property in Texas is community property, not separate property.

To learn more about whether your assets are community or separate property, discuss your situation with a Killeen divorce lawyer.

What is Mixed Property?

Sometimes, it can be challenging to define property as separate or marital. For example, if one spouse collected comic books before the marriage and continued to collect while married, the collection can become mixed property depending on the parties' intent and the funds used for the post-marriage purchases.

Can the Classification of Property Change During the Marriage?

There are many ways that separate property can become community property. A separate property, such as a bank or brokerage account, can become community property through the addition of community-owned funds.

When a spouse withdraws funds from such an account, the law presumes that the community funds are removed first. Still, this is creating confusion where none need have been. Titling and handling of property in the marriage can change property classification regardless of the parties’ original intent.

How Can I Keep Property Separate?

Texas operates under a rebuttable presumption that anything acquired during the marriage is community property. The name on the property title will not control whether the property is community or separate.

To maintain the status of separate property, the spouse claiming sole ownership has to be able to prove the following information by clear and convincing evidence:

  • When the property was acquired

  • That it was acquired by inheritance, gift, or allowable recovery for injury

  • That no community funds were used to purchase the property

  • That no community funds were used to maintain the property

It is important to build a strong case to protect your property. Consult with a Killeen divorce attorney to find what kind of evidence can be helpful in your case.

What about Family Heirlooms?

With personal property like jewelry or fine china, the main issues are intent and recordkeeping. So long as the assets, whenever and however acquired, were clearly identified as separate property, were continuously maintained as separate property, and no community funds were spent on them, the assets should continue to be separate property.

A gift from one spouse to another is generally deemed separate property. Learn about how engagement rings are treated in a Texas divorce.

Call Us Today to Speak with a Divorce Lawyer in Killeen

Property division can be one of the most contentious issues in any divorce. You can obtain expert help with your divorce and property issues with Brett Pritchard, a Killeen attorney who concentrates much of his practice in family and divorce law. Call us at (254) 781-4222 or contact us online to schedule a FREE case evaluation.

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