The answer is: it depends on how that property is characterized. In Texas, which is a community property state, any property acquired during the marriage is presumed to be community property, meaning both spouses have an equal interest in it. However, there are ways to prove that certain assets are your separate property, which would protect them from division during a divorce.
In Texas, property is categorized as either separate or community property:
- Separate Property: Includes anything you owned before the marriage, as well as anything you received during the marriage as a gift, inheritance, or through a will.
- Community Property: Generally includes anything acquired during the marriage.
The key challenge during a divorce is to prove which property is separate if you wish to protect it from division. Since the law presumes that all property owned at the time of divorce is community property, the burden is on you to prove otherwise.
Proving Separate Property
Proving that certain assets are your separate property can be achieved through a couple of methods:
- Contractual Agreement: If you and your spouse have agreed, either in a prenuptial or postnuptial agreement, or through an agreement during the marriage, you can establish that certain property is separate.
- Inception of Title: This method determines the character of property based on when and how the ownership interest was first acquired. For example, if you bought a house before marriage, that house is your separate property.
The Process of Inception of Title
To determine whether property is separate or community, attorneys follow these steps:
- Determine the Date of Acquisition: Identify when the property was first acquired.
- Check Marital Status at That Time: Determine if the property was acquired before or during the marriage.
- Analyze the Manner of Acquisition: Assess how the property was acquired (e.g., through purchase, gift, inheritance).
Special Considerations
- Salary and Earnings: Income is categorized based on when it was earned, not when it was paid. This can affect whether salary earned during separation, but before divorce, is considered community property.
- Bank Accounts: While a bank account may be separate property, any interest earned during the marriage is considered community property.
- Real Property: If you use separate funds to purchase real estate during the marriage, the property may remain separate, but you’ll need to trace the funds to prove it.
- Retirement Accounts: Retirement benefits may be mixed, with portions considered separate and others as community property, depending on when the benefits were earned.
