Protecting Separate Property

Many people accrue significant assets that they own independently before they get married. If their marriage falls apart, they may be concerned about whether the property they owned before the marriage will be subject to division by the courts. Fortunately, there are measures people can take to protect separate property in divorce. If you or your spouse intend to end your marriage and you have separate property, it is prudent to meet with an attorney to discuss your rights. The dedicated Dallas divorce attorneys of McClure Law Group understand the importance of safeguarding property you worked hard to accumulate before their marriage, and if you hire us, we will help you fight for a just outcome.

Under the Texas Family Code (the Code), any property that one spouse claimed or owned by a spouse before the marriage; obtained during the marriage by devise, descent, or gift; or that represents damages for a personal injury sustained during a marriage, other than compensation for loss of earning capacity, is separate property. Further, property that is expressly defined as the separate property of one spouse in a prenuptial or post-nuptial agreement may be deemed separate property. Each party has the sole right to control, dispose of, and manage their separate property. In other words, they may sell it or use it in any manner they deem fit without their spouse’s input (as long as they are not subject to any Standing Order or other court order preventing them from disposing of property). Any property acquired by either spouse during a marriage that is not defined as separate property is considered community property.

Even if a couple has a healthy marriage, it is prudent for people to protect their separate property. To do so, they should be careful not to comingle community and separate assets or use community funds to pay for or maintain separate property (or separate funds to maintain community property). In other words, if a party bought a piece of land prior to getting married and then used community funds to pay down the loan on that land, their spouse may be able to argue that the community estate should be reimbursed for the funds spent to pay down the principal on the loan. Parties can also enter into marital agreements that dictate property is the separate property of one spouse.

Pursuant to the Code, when a couple divorces, their community property is subject to division in a manner that the court deems just and right, while their separate property remains separate and is not subject to division. Texas law presumes that anything obtained during the marriage or owned upon divorce is community property, and parties will often disagree over whether an asset is community or separate. A party arguing that an asset is separate must prove their position through evidence that is clear and convincing, which is a high burden.

Fortunately, there are measures people can take to protect separate property in divorce. For example, a party that owns a separate asset should gather any documentation related to its acquisition and maintenance. In other words, if a person bought property prior to the marriage, records from the purchase, funding, and payments for the property can be used to support the assertion that it is separate. Furthermore, if separate property is in a bank account or retirement plan, it is prudent to keep track of the statements on these accounts throughout the marriage as most banks only keep records going back seven years.

Similarly, records demonstrating that their spouse did not contribute to the purchase of the asset and that community funds were not used to maintain it can demonstrate that it remained the purchaser’s separate property. In some instances, it may be necessary to hire a forensic accountant to trace the property back to its origin, to prove its separate nature.

While community property is subject to division in Texas divorce proceedings, separate property is not. If your marriage is ending and you have questions about protecting separate property in divorce, it is wise to consult an attorney as soon as possible. The experienced Dallas lawyers of McClure Law Group possess the skills and resources needed to help you preserve the property that is rightfully yours, and if you engage our services, we will diligently pursue the results you deserve. Our principal office is in Dallas, and we are can meet clients by appointment at our Collin-County office in Plano. We frequently represent parties in divorce proceedings in Dallas, Garland, Fort Worth, McKinney, Richardson, Frisco, Irving, and Rockwall. We also help people with family-law disputes in cities in Dallas, Collin, Grayson, Tarrant, Rockwall, and Denton Counties. You can contact us by calling us at 214.692.8200 or using our form online to set up a confidential meeting.