Is it Separate Property?

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If you are facing a Texas divorce, the division of your property and assets is no doubt a concern, and if you have separate property, protecting it in the course of your divorce is likely a priority. If this is the situation you find yourself in, better understanding the dividing line between separate and community property is key. (What is the Difference between Community and Separate Property?)

Upon Divorce

Upon divorce, those assets that you brought into the marriage with you and those assets that you acquired over the course of your marriage will need to be sorted into separate and community property and will need to be divided in a manner that is deemed equitable – or fair – given the circumstances involved. As such, your community assets will not necessarily be divided equally. That property that is truly separate, however, and that you kept separate throughout the marriage will remain your separate property, but it generally is not quite that simple.

Related: "Just and Right" Equitable Distribution of Property Between Spouses

To Qualify as Separate Property

In order to qualify as separate property, one of the following must apply:

  • You brought the property into the marriage with you and kept it separate throughout.

  • The property was given to you as a gift (in your name only) during the course of your marriage. (Texas Divorce and Gifts Between Spouses)

  • You inherited the property (in your name only) during the course of your marriage.

Anything else will almost certainly be classified as community property.

The Presumption

In the State of Texas, the presumption is that the property you own as a married couple is all community property, and upon divorce, you will need to prove otherwise (regarding any separate property you own). To demonstrate that the property was yours prior to marriage and that it remains yours, you will need clear and convincing evidence that the court finds compelling. A few important points to make on this topic include:

  • It does not matter who made the purchase or whose name is on its deed or title – if you acquired the asset while you were married (and did not purchase it with separate funds), it remains community property.

  • Separate property that you bring into the marriage with you but fail to keep separate is likely to become community property, and the line that divides community property from separate property is often quite tenuous.

  • If the asset in question is an investment, such as a retirement account or a business – even if you can establish its separate nature – the amount that it has increased in value over the course of your marriage will very likely be deemed a community asset.

In other words, it is complicated, and working closely with a dedicated divorce attorney with extensive experience successfully guiding divorces that involve complicated community assets is in your best interest. (Is It Time to Call a Texas Divorce Attorney?)

Turn to an Experienced Killeen Divorce Attorney for the Help You Need

Brett Pritchard at The Law Office of Brett H. Pritchard is a trusted Killeen divorce attorney who is on your side and well prepared to help. For more information, please do not wait to contact us online or call us at 254-501-4040 today.


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