Separate Property in Divorce Cases

Property division can be one of the most stressful aspects of a divorce. Whether that property includes the marital home, other houses or land, vehicles, investments, or retirement savings, division can be complicated—and bitterly contested.

In Texas, most property acquired during a marriage is considered community property and will be divided. However, there are exceptions. 

To determine whether you have any property that could be solely yours and, therefore, not eligible to be divided in a divorce, talk to one of our property division attorneys at Garza Law Firm.

Need help protecting your property? Contact us today at (214) 225-4344 to schedule a consultation with our experienced attorneys.

Proving Separate Property Ownership

Separate property cannot be divided in a divorce. 

In order to establish any property as your separate property, you must prove that you either owned the property before getting married or that you obtained the property during the marriage as a gift or inheritance.

For example, if you purchased a house before marriage, that house is your separate property and a court cannot award any ownership of that house to your spouse.

Funds obtained through a personal injury settlement may also be considered separate property, as they were awarded solely to one individual.

The following can be used to prove separate property ownership:

• Legal documents, such as deeds, tax returns, and wills
• Supporting documents for purchases, such as bank statements, property tax receipts, corporate records relating to stocks, and more
• Evidence of mutations, or clear proof that separate funds were used to purchase property after the marriage
• Testimony of witnesses
• Testimony of one or both spouses

How Texas Law Defines Community Property

In Texas, property acquired during the marriage is typically considered community property. This means that any property or assets obtained by either spouse during the marriage belong to both spouses equally, unless there’s an agreement that states otherwise.

• What qualifies as community property?
  • Salaries and wages earned during the marriage
  • Property purchased using joint funds
  • Investments made with community funds
  • Income generated from community property, such as rental income or dividends

However, there are exceptions:

• Separate property includes assets owned before marriage, gifts, or inheritances received during the marriage by one spouse. These are not divided during a divorce.

Common Misconceptions About Community Property

Many people mistakenly believe that community property means a 50/50 split. However, Texas law focuses on equitable division, not necessarily equal division. This means the court will consider various factors to ensure a fair distribution based on the circumstances, such as the length of the marriage and each spouse’s financial contributions.

• Misconception: “Everything I buy after the marriage is community property.”
  • Reality: If you receive an inheritance or a gift after marriage, it can be classified as separate property, not subject to division.

Dividing Retirement Accounts and Pensions

When it comes to dividing retirement accounts, such as 401(k)s or pensions, it’s important to understand that these are typically considered community property if contributions were made during the marriage.

• How retirement accounts are treated:
  • The portion of the account accumulated during the marriage is community property, while the portion acquired before marriage is separate property.
  • A Qualified Domestic Relations Order (QDRO) is required to divide retirement accounts like 401(k)s and pensions. This legal order allows one spouse to receive a portion of the other spouse’s retirement benefits.

Dividing Debt in Divorce

Along with property, marital debt is also divided during a divorce. In Texas, debt incurred during the marriage is generally considered community debt and is subject to division.

• Factors in dividing debt:
  • The purpose of the debt: Was it for a family or marital need, like buying a home, or for a personal expense, like credit card debt?
  • Each spouse’s ability to repay: Courts may allocate debt based on who can handle the payments after divorce.

Certain types of debt, such as student loans, are typically considered the separate responsibility of the spouse who incurred them, as they were acquired before or during the marriage but were not used for marital purposes.

What a Lawyer Can Do For You

It can be tedious and difficult work to track down property documentation, and you may not know if the documentation you have is proof enough to be awarded separate property. But a lawyer can tell you and can also track and document evidence you may not think of.

 It’s best to work with an experienced and diligent attorney—like those at Garza Law Firm—to prove separate property.

Frequently Asked Questions (FAQs)

What is the difference between community property and separate property in Texas?

• Community property is any property acquired during the marriage, while separate property includes assets owned before marriage, gifts, or inheritances. The key difference is that community property is divided in a divorce, but separate property is not.

How can I prove my property is separate in a divorce?

• To prove separate property, you must provide documentation such as deeds, tax returns, or bank statements showing the property was acquired before marriage or as a gift or inheritance. You can also show evidence of how separate funds were used for property purchases during the marriage.

What happens if separate property gets mixed with community property?

• When separate property is commingled with community property (for example, by depositing separate funds into a joint account), it may become difficult to trace. In some cases, this can turn separate property into "hybrid property," which may be subject to division.

Can I protect my separate property during a divorce?

• Yes, you can protect your separate property by keeping clear documentation of your ownership and keeping it separate from community assets. You can also consider signing a prenuptial or postnuptial agreement to clarify property ownership.

How does the court determine how to divide property in a Texas divorce?

• The court considers factors like the length of the marriage, each spouse’s contribution to the marriage (both financial and non-financial), the health and financial needs of both parties, and whether there are children involved. While Texas follows community property laws, the division is still based on what the court deems equitable, not necessarily equal.

Can a judge order me to give my spouse part of my separate property?

• If separate property is improperly commingled with community property or if a spouse's actions caused a significant increase in the value of the separate property, a judge may order a portion of that property to be divided. However, separate property generally remains with the spouse who owns it.

What is the role of an attorney in property division during divorce?

• An experienced attorney can help you navigate the complexities of property division by ensuring all assets and debts are properly identified, categorized, and valued. They can also help you gather the necessary documentation, negotiate on your behalf, and represent your interests in court if needed.

Dividing property during divorce? Contact us now at (214) 225-4344 for trusted legal assistance.