What Counts as Separate Property in a Divorce in Texas?

Splitting up property and assets can be one of the most challenging aspects of a divorce. Unlike most U.S. jurisdictions, Texas is a community property state (Texas Family Code § 3.002). Each spouse’s marital property is presumed to be jointly owned. With that being said, some property can be classified as separate property. A spouse generally has the right to retain his or her full ownership of separate property in a divorce. Here, our Houston property division attorney explains what can qualify as separate property in a divorce in Texas.

Property Owned or Claimed Before Marriage

Separate property in Texas includes property that a spouse owned or claimed before the marriage. That may include real estate, retirement accounts, bank accounts, vehicles, business interests, investment accounts, or other assets that were already owned by one spouse before the date of marriage. The key issue is not simply whose name is on the account, deed, or title. The key issue is characterization. If an asset existed before marriage, the spouse claiming it as separate property must be able to trace the asset back to separate ownership.

Note: Premarital property can be protected through a prenuptial agreement in Texas. As long as properly drafted, prenups are generally enforceable.

Property Received by Gift or Inheritance

Texas Family Code § 3.001 also treats property acquired during marriage by gift or inheritance as separate property. In plain terms, gifts and inheritances generally belong to the recipient spouse as separate property, even if received while married. A gift requires donative intent, delivery, and acceptance. An inheritance may be proven through probate records, estate documents, account statements, or transfer records.

Certain Personal Injury Compensation

A personal injury recovery received during marriage may be partly separate and partly community property. Texas law provides that recovery for personal injuries sustained by a spouse during marriage is separate property, except for any recovery for loss of earning capacity during marriage. That distinction is important. Compensation for physical injury, pain and suffering, disfigurement, or personal damages may be separate property.

Separate Property Must Be Proven by Clear and Convincing Evidence

It is important to emphasize that Texas law presumes that property possessed by either spouse during divorce is community property unless proven otherwise. The spouse claiming separate property has the burden to rebut that presumption by clear and convincing evidence. That is a higher evidentiary standard than a mere preponderance of the evidence. If you have any questions or concerns about proving separate property, an experienced Houston divorce lawyer can help. 

Contact Our Houston Property Division Attorney Today

At Lindamood & Robinson, P.C., our Houston divorce attorney has the skills and experience to help clients navigate complex property division cases. If you have any questions about separate property designations, we can help. Please do not hesitate to contact us today for a confidential initial consultation. Our firm handles divorces in Houston, Harris County, and throughout Southeast Texas.