Separate property, community property, marital property

When it comes to divorce proceedings in Texas, one of the most important considerations is the division of property. Under Texas law, all property owned by either spouse is presumed to be community property unless proven otherwise. However, some property may be considered separate property under certain circumstances. In this comprehensive guide, we will explore what separate property means in Texas and how it can impact divorce proceedings.

What is Separate Property?

According to the Texas Family Code 3.001, separate property is defined as “property owned or claimed by a spouse before marriage, property acquired during marriage by gift, devise, or descent, and recovery for personal injuries sustained by the spouse during marriage, except for any recovery for loss of earning capacity during marriage.”

Property Owned or Claimed Before Marriage

Any property that a spouse owned or claimed before marriage is considered separate property. This can include real estate, personal property, and any other assets that were acquired before the marriage took place.

Property Acquired During Marriage by Gift, Devise, or Descent

Separate property can also include property that was acquired during the marriage by gift, devise, or descent. For example, if one spouse inherits a house from a deceased relative during the marriage, that property is considered separate property.

Recovery for Personal Injuries

Any recovery for personal injuries sustained by a spouse during marriage is considered separate property. This includes compensation for pain and suffering, medical expenses, and lost wages as a result of the injury.

It’s important to note that any recovery for loss of earning capacity during marriage is not considered separate property. This means that if a spouse is unable to work and earns compensation as a result of this inability, that compensation is considered community property.

How is Separate Property Treated in a Divorce?

In Texas, separate property is not subject to division in a divorce proceeding. This means that if a spouse owns separate property, they will be able to keep that property after the divorce is finalized. However, it’s important to note that separate property can become community property under certain circumstances.

For example, if separate property is commingled with community property, it can lose its separate property status. This means that if a spouse owned a house before marriage and then used community funds to make improvements to the house during the marriage, the house may become community property.

It’s important to establish clear documentation and proof that property is separate property if it is to be claimed as such. If a spouse is unable to provide sufficient evidence to prove that property is separate, it may be treated as community property.

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