February 26, 2021 | Share
Can Your Spouse Take Your Separate Property in Divorce? Our McKinney Divorce Lawyers Explain How Separate Property is Handled in Texas
When you talk about divorce in McKinney, people will often tell you that because Texas is a “community property” state, it means that absolutely everything both spouses own is shared jointly. However, that is simply not true. Property that is classified as “separate” remains yours alone after the marriage.
However, McKinney divorce lawyers often see situations where separate property transforms into joint marital property. So the key to understanding whether your spouse can take your separate property in a divorce is to understand first what property can be classified as separate, and second, whether that property retains its separate characteristics.
McKinney Divorce Lawyers Can Help Determine Whether Property Should Be Classified as Separate
Although Texas law operates with the base presumption that either spouse’s property is treated as joint community property, Texas Family Code §3.001 describes three ways in which property can be treated as separate. Not surprisingly, property is considered separate if it was “owned or claimed” by one spouse before the couple married. For instance, if you put a lot of time and money into a classic car back in your single days, that car could remain yours alone after divorce.
Divorce lawyers in McKinney also know that property acquired by one spouse by gift or inheritance can also be classified as separate. Finally, property one spouse receives because of personal injuries may also be classified as separate, except for any amounts awarded due to lost earning capacity.
Separate Property Should Be Kept Separate
For one spouse to walk away with property that can be treated as separate, they need to take great care to keep that property separate. This is where McKinney divorce lawyers often see clients make mistakes. When separate property is co-mingled with community property, such as putting money into a joint banking account, it can all be treated as community property. Even funds held in a separate account can sometimes be treated as joint property. Courts require clear and convincing evidence to show that property has not lost its separate characteristics.
McKinney Divorce Lawyers Can Help Prove That Property is Separate
While the statutes regarding separate property are relatively straightforward, the case law interpreting those statutes is complex. Each case’s circumstances play a critical role in determining whether money or other property will be considered one spouse’s separate property.
Seasoned McKinney divorce lawyers could use forensic accounting and other techniques to show that property is appropriately classified as separate. This can be particularly challenging when one spouse owns a business or purchases property before the marriage.
Work With Our Experienced McKinney Divorce Lawyers
Identifying and tracing separate assets can take time, so it is wise to begin the process as soon as possible if you are considering divorce. The knowledgeable McKinney divorce lawyers at Nordhaus & Nordhaus could work to help assure a fair settlement of property in your case, including the appropriate allocation of separate assets and debts. To learn more about how we could assist in your case, call 214-726-1450 or contact us online for a confidential consultation.
Categories: Family Law & Divorce