In the state of Texas, property division during a divorce is subject to the laws of “community property” and “separate property.” Community property refers to assets and debts acquired during the marriage, while separate property refers to assets and debts acquired prior to the marriage, or acquired during the marriage by gift or inheritance.
It is important to understand the distinction between community and separate property, as the manner in which these assets are divided can have a significant impact on a person’s financial stability post-divorce. In this article, we will discuss what constitutes separate property in a Texas divorce.
Definition of Separate Property
As stated earlier, separate property refers to assets and debts acquired prior to the marriage, or acquired during the marriage by gift or inheritance. The following are examples of separate property in a Texas divorce:
- Property owned prior to the marriage This includes any assets, such as real estate, stocks, or personal property, that were owned by either spouse prior to the marriage.
- Gifts and inheritances Gifts and inheritances received during the marriage, whether by one spouse or both, are considered separate property in Texas.
- Income from separate property Income earned from separate property, such as rental income from a pre-marital property, is considered separate property in Texas.
- Personal injury settlements In Texas, personal injury settlements are considered separate property, even if the settlement is received during the marriage.
- Retirement benefits Retirement benefits accumulated prior to the marriage, such as a 401(k) or pension plan, are considered separate property in Texas.
It’s important to note that the above list is not exhaustive, and that each case is unique. An experienced divorce attorney can help you determine what constitutes separate property in your specific case.
Burden of Proof
In a Texas divorce, the burden of proof lies with the spouse claiming that a certain asset or debt is separate property. This means that the spouse must provide evidence to support their claim, such as documentation or witness testimony.
If the court determines that an asset or debt is separate property, it is not subject to division during the divorce. Instead, it remains the sole property of the spouse who acquired it.
Commingling of Separate Property
In some cases, separate property may become commingled with community property. Commingling occurs when separate property is mixed with community property, making it difficult to determine its original source.
For example, if a spouse uses pre-marital funds to make improvements to a community property home, it can be difficult to determine what portion of the home is separate property and what portion is community property. In these cases, the court may use various methods to determine the value of the separate property and allocate it accordingly.
Conclusion
In a Texas divorce, it’s important to understand the distinction between community property and separate property. Separate property refers to assets and debts acquired prior to the marriage, or acquired during the marriage by gift or inheritance. If a spouse claims that an asset or debt is separate property, they must provide evidence to support their claim. An experienced divorce attorney can help you determine what constitutes separate property in your specific case and guide you through the property division process.