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What Do You Need to Know about Separate Property in Texas?

By October 23, 2023April 3rd, 2024No Comments

When getting divorced in the state of Texas, you need to keep in mind that it is a community property state.

But what does community property mean? What is separate property in Texas? And what do they mean for property division during a divorce?

Read on to find out from our experienced divorce law team at C.E. Borman the differences between community and separate property and how they can affect your divorce proceedings.

Community v. Separate Property in Texas

By law, all the property that is owned by either or both spouses at the time of divorce is automatically presumed to be part of the community property. Thus, the property involved would be subject to a just and equitable division by the court.

However, under Texas law, you can also prove that you have separate property.

Jurisprudence dictates that a court has no authority to award an interest in one spouse’s separate property to the other.

Types of Separate Property in Texas

  • Property that a spouse owned before marriage
  • Property that was given to the spouse as a gift or inheritance
  • Property received through personal injury recoveries

The first type of separate property acknowledged by Texas law is property owned by a spouse before marriage. It would include real estate property bought by a spouse before marriage or investments in different businesses or 401k.

The second type of property is gifts or inheritances that were bequeathed to the spouses. This could be real estate or jewelry given to the spouse as a birthday or anniversary gift, etc.

The third type of separate property is personal injury assets. This type of property is probably the most complicated among the three types of property, and it is best to consult a lawyer that is highly experienced in this area.


How Is a Property Proven as Separate Property in Court?

Trying to prove a separate property in a Texas court can be taxing because the burden of proof lies on the spouse asserting such a claim.

The spouse who claims to own the property before marriage must prove the claim by “clear and convincing” evidence. (This type of standard is higher than the usual civil “preponderance of evidence” standard in courts.)

Certain types of separate property are easier to prove, while some can be quite difficult to ascertain and would require more time and resources to prove. One of the easiest properties to prove is those that were owned prior to marriage. It can quickly be established by a certified copy of the deed of the property, which shows the date which shows that it was acquired prior to marriage.

Not all separate properties are easy to prove, however. One of the more difficult would be the financial accounts that were owned at the time of the marriage. More often than not, these financial accounts usually have a substantial number of transactions that flow in and out of the account during the marriage. These transactions include community property transfers.

Separate property laws in Texas can be straightforward. However, the application of the statutes is where it can get complicated. In most cases, separate property claims that are proven can significantly alter the divorce proceedings’ outcome regarding property division.

In complex situations like this, it is best to hire professional help, such as an attorney experienced in Texas property division and divorce law.

Contact C.E. Borman Today

Fighting with your spouse over how to divide your property is a stressful and unpleasant experience. At C.E. Borman, we’ve been helping our clients through divorce for decades, and we understand how difficult it can be. That’s why we use all of our experience and dedication to protect your rights and help you get the settlement that’s best for you and your family. Contact us today.


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