Last week I discussed the basics of community property and what a spouse may be entitled to during a divorce proceeding. Today I am going to quickly talk about separate property in the state of Texas.
Characterization of Separate Property
In Texas, property is presumed as community property unless a spouse can prove otherwise. If a spouse claims that a particular piece of property is separate property and not community property, the burden is on them to overcome that presumption by showing the property in question is separate property using the "clear and convincing" evidentiary standard. A good way to do this is to trace the characterization of the property all the way from it's inception. For complex cases, hiring an expert may be the best way to go due to the complexity of the case.
Types of Separate Property
Separate Property in Texas can take three forms. They are:
- Property that was owned by a spouse prior to marriage;
- Property given to a spouse as a gift or inheritance from parents for example;
- Monies received from certain personal injury claims
Property That Was Owned Prior to Marriage
If a piece of property was obtained before the marriage, it will normally be characterized as separate property absent some other agreement.
Property Given As Gift or Inheritance
Property given to another spouse by gift or inheritance is characterized as separate property. Examples such as a parent or sibling passing away and leaving you with a house or car would be your separate property. Likewise if someone gifted you a house or car, most likely it would be characterized as your separate property.
Monies Received From Certain Personal Injury Claims
If a spouse gets into a personal injury accident, say a car accident, monies paid out to that spouse are normally separate property such as monies for pain and suffering. The exception to this are monies received as loss of earning capacity or income as income is generally described as community property.
It's important to note that if you have separate property and wish to maintain its separate nature that you do not commingle it with community property or it may be difficult to trace in the event of a divorce.