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What is considered separate property in a divorce?

On Behalf of | Mar 8, 2023 | Divorce

The end of a marriage is a deeply emotional experience, but the legal process of divorce in Texas is largely about dollar signs and decimal points. When they divorce, a couple must find a way to divide their property, and this can mean a lot of negotiation.

Generally, divorcing couples need to divide only their community property.

Each spouse will be able to keep any property that is considered their separate property. Therefore, it is important to know what is separate property and what is community property.

Separate property in a divorce

Under Texas law, all assets and debts acquired during the marriage are considered community property.

For the most part, separate property consists of assets or debts that either spouse owned prior to the marriage. It can also include gifts and inheritances that either spouse acquired during the marriage as long as the gift or inheritance is given to only one spouse alone. In some cases, a spouse might be able to keep some of the proceeds from a personal injury lawsuit.

Separate property may also include the portion of retirement accounts that were in the account prior to the marriage and can be traced through the retirement account.

The burden is on the spouse claiming property is separate to prove that it is indeed separate. There is a presumption that all property owned by either spouse at the time of the divorce is marital unless a spouse can prove otherwise.

Commingled property

Complicating matters, some types of assets can start out separate and then become at least partly community property.

For example, when married couples mix their separate property into joint accounts or some other community asset, the separate property becomes commingled with the community property. It can be very difficult to sort out how much of this property should be considered separate in divorce – especially after a long marriage.

As we mentioned earlier, retirement accounts that predated the marriage may be considered as separate property, but any value they accrued during the marriage is considered as community property.

Sorting this out is not easy. Experienced attorneys help clients understand their options and protect their rights.