What are the differences between separate and community property?

On Behalf of | Jul 8, 2022 | Property Division

Separate property belongs to the individual who owned it before the marriage. The American Bar Association notes that separate nonmarital property may also include assets acquired by only one spouse during a marriage­­­. Nonmarital property could include gifts, inheritances or items purchased with a spouse’s separate money.

Land titled in the name of one spouse before your wedding, for example, classifies as separate property. If the name on the title did not change to include both spouses’ names, and it had no impact on your marital assets, it remains separate from your community property.

Which assets and property divide in divorce?

Chapter 3 of the Texas Family Code recognizes all assets bought or obtained during a marriage as community property. You and your soon-to-be ex-spouse may negotiate a method for dividing them in “half.” The law also presumes that income and earnings received while married divide equally between two spouses even if only one spouse worked.

A portion of the working spouse’s retirement account could divide in divorce. The court may review the contributions and financial growth beginning from your wedding date. The value before your marriage remains the working spouse’s separate property. The value generated after your wedding, however, belongs to both individuals.

When may separate property divide in divorce?

The Lone Star State’s Family Code generally does not require couples to divide separate property. Inheriting money, however, could result in the funds commingling or mixing with your community property if you deposit them into a shared bank account. If your household used a spouse’s separate property to purchase a shared asset, the court may add it to your marital estate for division.

Receipts, titles and documents could prove which assets belong to one individual rather than your marital estate. Showing that separate assets did not commingle may help prevent their inclusion with your community property.

FindLaw Network