What is Separate Property in Divorce?
In Texas, Separate Property is property that you already owned prior to the marriage, what you got by gift solely to you, or what you inherited.
Separate Property includes:
- Property owned before the marriage.
- Gifts or inheritances received by one spouse during the marriage.
- Personal injury settlements (excluding compensation for lost wages).
- Any property explicitly designated as separate in a prenuptial or postnuptial agreement.
Examples of Separate Property In Divorce
Examples of separate property put in common perspective in a divorce is when you already had a house or land prior to the marriage and then you married someone after you got the house. If you paid for the entire house during the marriage, there may be a claim from the other party to seek reimbursement of some of the mortgage payments that were paid while you all were married into the house. If the entire house was paid for prior to the marriage, the other party may seek reimbursement of certain improvements that added to the value of the house, depending on the evidence you provide.
Another example that is common in divorces for older Texans is where they married after they were already retired or after they substantially earned most of their retirement. These issues are complicated to analyze because certain pensions may have a distinct formula for division as opposed to interest earning other retirement benefits, but the rule stays virtually the same relating to separate property and the court would look to the attorney having pled in the divorce petition a claim for separate property or a claim for reimbursement of certain interest or certain benefits during the marriage.
In cases of inheritance, it is considered if the entire property was acquired by inheritance or whether community property or wages during the marriage were put into that property that was inherited as a reimbursement claim to the community estate.
When a gift is made to one of the marital partner by another or even the spouse, the court will look at many factors, but the main rule is as to the intent of the person that gave it you as being proved to be a gift solely to you, and also when it comes to land, that the evidence of the gift is in the proper written form to that marital partner under Texas law.
If you’re dealing with a divorce, it’s important to establish whether an asset is separate or community, as this will impact how property is divided. For more information, call The Barrera Law Firm for a free consultation with an attorney on how to proceed at 956-428-2822 or reach us online.
