Separate Property— Family Law 101

Unlike community property, separate property is not divided in a divorce. The Court cannot award one spouse separate property to the other spouse. Instead, the spouse who owns the separate property will be awarded that property, and the Final Divorce Decree will confirm that property as the owning spouse’s separate property.

Separate property is limited. A party making a separate property claim must overcome the community property presumption by proving the property was either:
(1) owned by one spouse prior to the marriage,
(2) received as a gift to one spouse,
(3) inheritance, or
(4) based on some personal injury claims.
The spouse claiming to have separate property has the burden of proof. That means the claiming spouse must prove, by clear and convincing evidence, that the property meets one of those limited definitions that we just reviewed.

To satisfy this burden of proof and protect your separate property claim, it is important to disclose all of your property to your attorney. Hidden assets can be subject to future division by the Court when they are later discovered.
Please note that sometimes separate property is not an asset, and is instead a liability. Separate debts, which are debts incurred before the marriage, are not divided by the Court. Debts incurred during the marriage, however, may become the responsibility of the community. This means that it is possible to be held responsible for the debts that your spouse is incurring right now, even if you consider yourselves separated. This is why it is important to have an attorney help you finalize your divorce quickly. There is no legal separation in Texas.