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Keeping Separate Property Separate

Texas is a community property state, which means that most property acquired during the marriage belongs to both spouses and must be divided between them if they get divorced. Everything from the house to the kitchen table, if it was acquired during the marriage then it is part of the community estate. However, the Texas Family Code recognizes three instances where property is considered separate from the community estate, and thus labelled separate property. The first is the property owned or claimed by one spouse before the marriage. This means that any property that one spouse bought, found, or had been given before the beginning of the marriage is considered separate from the community estate and shall not be divided between the couple during the divorce. The second is any property acquired by the spouse during the marriage by gift, devise, or descent. That's right, even if you acquire property during the marriage, it can still be characterized a separate property as long as someone gave it to you as a gift, willed the property to you, or you inherited the property. Finally, any recovery, except those for loss of earning capacity, for personal injuries you have sustained during the marriage. For example, if you got into a car wreck that broke your leg, any money that you received other than those for loss of earning capability would be considered your separate property.

Now that you know what is considered separate property, it is now important to know how you can keep it separate. This is important because the Texas Family Code creates a presumption that property possessed by either spouse during or at the end of the marriage is community property. In order to overcome this presumption of community property, the spouse claiming certain property as separate property must trace and clearly identify property claimed to be separate. "Tracing" involves establishing the separate origin of the presumed community property through evidence showing the times and means by which the spouse originally obtained possession of the property. Just testifying as to what is separate property without any other evidence is generally not enough to fight against the presumption of community property. Because the presumption is so strong, it is paramount that you keep good records for all your separate property so that in the event of a divorce you will be able to properly fight the presumption and keep your separate property separate.

If you have any legal problems concerning your separate property, call Yale Law at 940-891-4800.

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