Divorce: If Property Is In My Name, Is It Considered Separate Property?

Texas is a community property state for purposes of division of property. This means that, with few exceptions, all property acquired by you during your marriage belongs equally to both you and your spouse. This includes, for example, the income you each earned from the date of your marriage to the date of your separation, pension plans, retirement accounts, real estate, cars, and more.

Separate property is awarded to the owner of the property and is not divided. A dispute often arises when one party claims a certain piece of property is their own separate property and the other party claims it is community property.

If Property is in my Name, is it Separate Property?

Whether property is separate or community is not determined by whose name is on the deed to the real estate or whose name is on the retirement benefits, mutual funds, and other financial accounts. Many employer benefit retirement plans, such as 401(k) plans or IRAs, are only in the name of the employee, but are community property because they are the result of the labor of one party on behalf of the community.

You Must Prove by Clear and Convincing Evidence That Property You Acquired During the Course of the Marriage is Separate Property

Examples of separate property are:

• Property owned prior to the marriage and income received from that property if the income was not due to any effort by or expense from the community.
• Inheritance bequeathed to just one party.
• Gifts specifically to one party.
• Portions of a personal injury award.

Property acquired by you in your name only may be separate property only if it was acquired by the use of your separate property assets. If your name is on the separate property, but it was acquired during the marriage, the court will require you to prove by clear and convincing evidence that it is your own separate property.

Impact of Commingling

The court may find that property that was initially separate property has turned into community property due to commingling. An example of this is if inheritance money was deposited into a joint bank account.

A Divorce Attorney Will Help Determine Which Property is Separate Property

To survive a challenge to your separate property claim, you need an attorney who can work with you to trace the asset back to its source to show that there was no commingling.

For assistance with this process, and for answers to all your family law questions, contact attorney Daniel Abasolo at Springer & Lyle. You may also call him at 940-387-0404 to schedule a consultation.