How Can You Ensure Separate Property Remains Separate?

 Posted on November 15, 2024 in Property Division

Recently, a Texas divorce case made the news regarding whether the husband’s inherited, separate property would remain separate during his divorce or would become marital property, subject to property division. The former wife appealed the property division set forth by the court, which awarded the husband two pieces of real property as his separate property.

On appeal, the wife challenged the trial court’s characterization of certain properties as the husband’s separate property, claiming the husband failed to present sufficient evidence of the property’s separate nature. The appeal is pending. Texas is one of nine states that operate under community property law when dividing marital assets. Community property divides marital property right down the middle, regardless of extenuating circumstances.

States that operate under equitable distribution divide marital assets fairly but not necessarily equally. Community property laws in Texas make ensuring property remains separate even more important when that is the wish of the spouse who owns the property. If this is a concern of yours, it can be helpful to speak to an experienced McKinney, TX property division lawyer from The Ramage Law Group.  

How Separate Property Can Potentially Become Marital Property

Simply having a piece of property in either spouse’s name does not make that property separate. Texas follows an inception of title rule, which states that any property acquired during the marriage is presumed to be community property, regardless of how it is titled. A spouse claiming an asset as his or her separate property must be able to definitively prove that claim.

Property a spouse owns prior to marriage is generally considered separate property – with some exceptions. If a person owns a home prior to the marriage but after the marriage places his or her spouse on the deed, that home becomes marital property. If marital funds are used during the marriage to pay the mortgage or make improvements, then at least a portion of the home will be deemed marital property.

If one spouse makes improvements to the property through actual labor, then a portion of the home is marital property. The spouse who owned the house prior to the marriage must be able to prove it was owned before the marriage and that no marital funds have gone into the house, or it could be deemed community property in its entirety.  

Gifts and inheritances given to one spouse, either before or after the marriage, are usually considered separate assets, subject to the exceptions detailed above. A gift or inheritance of money placed into a joint account results in commingled funds, making it difficult—if not impossible—to prove the money is separate property.    

How Can You Ensure Your Separate Property Remains Separate?

One of the best ways to ensure property remains separate is through a pre-nuptial agreement or, if a gift or inheritance is received after the marriage, a post-nuptial agreement. Those who do not have a pre or post-nuptial agreement must ensure a solid paper trail exists that clearly shows the property is separate.

Additionally, it is crucial that the property is not commingled with marital funds or that a spouse’s name is not added to the property or bank account. If the property is real estate, it is also essential that no marital funds or labor are involved in the care and maintenance of the home to avoid having it deemed marital property.

Contact a Collin County, TX Property Division Lawyer

Keeping separate property separate during the marriage is important because during a divorce emotions are at an all-time high. Having a McKinney, TX property division lawyer from The Ramage Law Group can help ensure that you are able to keep your separate property during your divorce. Our firm is an all-woman, child-focused firm with an emphasis on collaborative law and client relationships. Contact The Ramage Law Group at 972-562-9890 to schedule an initial attorney meeting.