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What is Separate Property?

When you get divorced in Rockwall county or any other county, there are two kinds of property involved. First, there is separate property. The Family Code says a spouse’s separate property as:

  1. Property owned or claimed by the spouse before marriage;
  2. The property acquired by the spouse during marriage by gift or inheritance; and
  3. Monies received as recovery for personal injuries by the spouse during marriage.

Second, there is community property. Community property is basically anything acquired during the marriage that isn’t on the list above. The distinction between separate and community property is very important in a divorce. If a spouse has separate property, the other spouse is not entitled to half of it. But the parties are entitled to half of any community property.

When it comes to gifts, any gift give to a spouse is separate property whether it is given to the spouse by a third party or the other spouse. A spouse can gift his or her interest in community property to the other spouse and it then becomes the other spouse’s separate property. And if a gift is given to both spouses, each spouse then has one-half separate property interest in the gift. Gifts to community property are not possible.

A spouse can obtain separate property through inheritance in two ways. The first way is through devises which means that property was left to them in a will. The second way is through descent which means the property is given to them by inheritance when there is no will. Either way, any property obtained this way is a spouse’s separate property.

Sometimes separate property will change forms. For example, let’s say you owned a house before marriage. If you sold that house after marriage and spent the proceeds of the sale to build an add-on to you and your spouse’s new home, the value put into the new home with that money is still your separate property. Separate property does not stop being separate property when it is sold, exchanged or changes forms after marriage.

The only difficulty when separate property changes forms is that all property is presumed to be community in the divorce process. You have to prove that there was originally some separate property and then show how it changed forms. Again, for example, if you sold your house owned before marriage and used the proceeds to build an add-on to your new marital residence, you would have to show that:

  1. Proof that you bought the house before marriage
  2. Proof that the money received from the sale of that home was spent to improve your new marital residence

This isn’t too hard to do. Your name is will be on a deed to your separate property home, there will be proof of the sale, and your bank records can show you spent the money on the community property.

But this can all be a little complicated if you don’t know how to do it. Come meet with Guest and Gray Law Firm’s Rockwall county family lawyers in a free initial consultation to discuss how we can make sure your separate property is protected.

Call Rockwall, Texas Family Lawyers at (972)564-4644 about your Rockwall County Divorce.

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