One of the more complex issues you must deal with during a divorce is the division of property. Most property will be divided between the spouses, but not necessarily all of it. Separate property will usually remain entirely with one spouse. But what is separate property, really?
Is something owned by only one spouse?
Section 3.001 of the Texas Family Code defines separate property, which includes three different possibilities for what can qualify. The first is property owned by one spouse prior to the marriage. This can be just about anything, ranging from cash maintained in a separate bank account to real estate. It doesn’t really matter what the property is – just that its owned entirely by one spouse before the date of marriage.
The second type of separate property is property acquired during the marriage itself, but limited to very specific types of property. This type includes gifts intended solely for one spouse, even if the gift is from the other spouse. Inheritances also qualify as separate property – something a spouse receives through either a trust or a will.
The third type of separate property includes money a spouse receives from a personal injury lawsuit, though it won’t necessarily include everything received. For instance, any portion of the suit which is allotted for lost wages would not be considered separate property.
Important considerations for separate property
Despite the rules above, it’s important to understand that Texas carries a presumption that property is not separate property. Instead, if a spouse wants something classified as separate property, they must claim it as such during the divorce proceeding and then back that claim up with sufficient evidence. Another critical component of separate property is that it should be kept separate throughout the marriage – if separate property is mixed with property which is part of the marriage, it can lose some or all of its status as separate property and become subject to distribution between the spouses.