How to Prove Property is Separate in a Divorce

How to Prove Property is Separate in a Divorce

Aug 22, 2022
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In a community property state like Texas, separate property during the marriage is few and far between. Legally speaking, anything acquired during the marriage, whether it is vested solely or jointly, is community property. So if a Texas wife buys herself a car and is the only one who drives it, her husband owns half of it despite never paying a penny towards it and never using it.

 

Separate property is something the court cannot divide during your divorce. There is a high standard for proving separate property to the court. Meeting this standard can become difficult when separate property assets are commingled with community property assets, which is not uncommon and can have dire consequences.

 

Always discuss your property and rights under Texas law with a divorce attorney from Mims Ballew Hollingsworth | Family Law who handles complex property division matters.

What Constitutes “Separate Property” in a Community Property State

Texas is a community property state. Unlike in the majority of states, which are “equitable division” states, in Texas, all property owned by you and your spouse is part of your marital estate and is subject to being divided by a divorce court. This includes your house, financial accounts, vehicles, collections, and investments.

 

Considering this, there are not too many exemptions if the property was acquired during marriage:

 

  1. Property that you owned before the marriage (If you added your spouse’s name on the deed of property that you owned separately before the marriage, it is no longer considered separate property).
  2. The only properties that are considered separate when acquired during a marriage in a community property state are gifts and awards, including inheritance, tax-free cash payments from your parents to you, personal injury settlements, or insurance settlements.
  3. Anything acquired after the couple separates is also considered separate property. So even though you are still legally married, in Texas, that post-separation property is not community property. This is why it’s important to have a clear-cut date of separation.
  4. Property given as a gift from one spouse to the other during marriage is also considered separate property in a community property state like Texas. So if a wife bought her husband a yacht with her inheritance money, she just converted her separate property into his separate property.

 

Proving That Property Belongs Just to You

If you can not prove that the property is separate (or, likewise, if your spouse can prove that it isn’t), the court will divide the asset evenly between you. You must provide the necessary documentation (receipts, account statements, the last will and testament bequeathing property to you, a title report, etc.). Some people even hire professionals to help them trace—or disprove—separate property (private investigators, forensic accountants, etc.).

Contact a Southlake TX Divorce Lawyer Today

Mims Ballew Hollingsworth | Family Law are Southlake divorce lawyers who can further answer your questions about separate and community property. We have decades of divorce and asset division experience. We will happily provide an analysis of your case, just give us a call at 817-900-8330 or reach out through our contact form.

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