When two people are married all the property the couple owns will be either community property or separate property. In my last blog I gave an overview of what constitutes community property, so for this blog I wanted to complete the picture and provide some basic information on what is considered separate property.
Generally, speaking separate property is property that is wholly owned by only one member of the marriage. Separate property can either be property that one spouse owned before they got married or it can be property one spouse received during the marriage by way of gift, devise (by will), or decent (by inheritance without a will). Property is classified as either separate or community property at the moment it becomes the property of one of the spouses. This is called the inception of title rule. This straightforward rule can produce some confusing results. For instance, income that is earned from a spouse’s separate property, like rental income for a house the spouse owned before marriage, is community property. This is because that income was acquired by the couple during the marriage and thus meets the law’s definition of community property.
Once a piece of property is classified it will remain either separate or community property until the couple either divides the property through a post-nuptial agreement, a Court divides the property through a divorce, or a spouse makes a gift to the other spouse. Under Texas law, all the property of both spouses is presumed to be community property. That means if one spouse owns separate property, that spouse bears the burden of proving that the property is their sole separate property. Proving that a particular piece of property is one spouse’s separate property often requires clear records for that property that go back to the time the property was acquired. If you believe you own significant separate property and you are contemplating a divorce, it will be important for you seek the assistance of legal counsel to help you prove that your property is, and more importantly has remained, your separate property.