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What is Separate Property in Texas?

Texas is a community property state and by statute all property held by either or both spouses at the time of divorce is presumed to be community property and thus subject to division by the court. The court is required to divide the community property in a just and right manner.

However, Texas law also provides for the possibility of proving property as your separate property. It is well settled law that a court has no authority to award an interest in one spouse's separate property to the other spouse.

Three Types of Separate Property

There are three specific types of separate property in Texas:

  • property that was owned by a spouse prior to marriage
  • property received as a gift or inheritance
  • certain kinds of personal injury recoveries

Examples of property owned prior to marriage would include if one spouse owned a home or had money in an investment account or 401(k). Gifts or inheritances include assets that were left to you in an estate or gifts made to you, such as birthday or anniversary gifts. Personal injury recovery assets are complicated (some components of the recovery are separate, some not) and you should consult with a good family law attorney if you have this issue.

What Is the Standard for Proving Separate Property?

Proving separate property in Texas is challenging, in part because there is a heightened burden of proof for these claims. The party claiming separate property must prove the claim by "clear and convincing" evidence. This is a significantly higher standard than the usual civil "preponderance of evidence" standard.

In cases involving separate property issues some claims are relatively easy to prove while some are extremely difficult and require a significant amount of resources. An example of an easy claim would be a piece of real estate that was owned pre-marriage and that ownership can be proven by a certified copy of the deed which predates the marriage.

A more difficult (and more common) example would be a financial account that was owned at the time of marriage and has had a large amount of transactions flowing in and out of the account since the time of marriage, including transfers of community property into the account. In complicated situations like this it is often necessary to hire a tracing expert (usually an accountant) who does an evaluation and report to trace the separate property component of the current asset.

While the law on separate property in Texas is fairly straightforward, the application of the law to the facts can be quite complex. Nonetheless, if proven separate property claims can dramatically alter the overall outcome of a divorce case property division.

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Before the divorce is final, the court may issue temporary orders to deal with immediate problems, such as conservatorship, possession, child support, and spousal support/alimony. Temporary orders can say who will live in the home, who will be able to write checks on the bank accounts, and who will have control of the children up until the divorce is final and permanent orders are put in place. In most cases, depending on the court, the spouses will be ordered to mediation prior to any hearing on temporary orders. Mandatory mediation helps lessen the case load at the court and helps the parties resolve issues without a court ruling.
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