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The Linder Firm Oct. 13, 2015

Separate property is property that was obtained prior to marriage. Certain types of property acquired during the marriage, particularly inheritances and gifts, may also be considered separate property. Separate property is not subject to division in divorce. However, it is a surprisingly complex issue that requires careful attention.

Here are five facts about separate property:

All Property Is Presumed To Be Marital Property At First

Your separate property is not protected automatically. In Texas, the law presumes that all property is marital property and subject to division. The burden of proof is on each spouse to show that certain property is separate. If you cannot prove that something is your separate property, it will need to be divided in the divorce.

Just Because Your Name Is On It Does Not Mean It Is Yours

Perhaps your name is on the deed to your house or the title to your car or some other asset. You may think that means the asset belongs to you. If the asset was acquired during your marriage, that is not the case. With few exceptions, all assets acquired during your marriage belong to both you and your spouse. They are marital property and subject to division, regardless of whose name is on the dotted line.

An Asset Can Be Both Separate Property And Marital Property

Perhaps you and your spouse took the money you had prior to marriage and combined it into a single bank account, where you added to it during the course of your marriage. This account may be part marital property and part separate property. Some of it may be subject to division and some of it may be protected as separate property, provided proper accountings can be provided. Other examples of commingled assets include homes that were purchased prior to marriage by one spouse but paid off during the marriage, or businesses started prior to marriage by one spouse but grown during the marriage.

Retirement Accounts Are Not Separate Property

A common misconception is that retirement accounts are separate property. That is not the case. 401(k)s, IRAs and other retirement accounts that were created or added to during the marriage are considered marital property and subject to division.

Separate Property Impacts Division Of Marital Property

In Texas, property is to be divided in a manner that is fair and just. That does not always mean that property will be divided equally. Many factors need to be taken into consideration. One of them is each spouse’s separate property. If one spouse has a substantial amount of separate property and the other does not, it may tip the balance of how the marital property is divided.

A Lawyer Can Help

Proper handling of separate property can make a huge difference in the outcome of your divorce, so it is important that you choose a lawyer who understands the nuances of this issue. At the law office of Phillip A. Linder, we have more than 20 years of experience handling complex divorce and property division issues.