What is “separate” property in Texas?

Many times the cases we accept in our office at The Barbosa Law Firm, P. C. will involve complex and costly procedures tracing the assets on hand by the litigants at the time of divorce to attempt and establish the property as either community property or a party’s separate property. The easiest way to describe “separate” property is as follows:

  1. The property owned or claimed by the spouse before the marriage;
  2. The property acquired by the spouse during the marriage by gift, devise, or descent; and
  3. The recovery for personal injuries sustained by the spouse during the marriage, except for any recovery for loss of earning capacity during the marriage.”

What is “community” property in Texas?

Under our current law in Texas, community property is the property that is owned equally between the spouses and not considered the party’s “separate” property. Whether or not “community property” exists depends on the marital relationship of the parties, when the marital relationship was created and when the marital relationship ended. In general, the property acquired by the spouses during the marital relationship is community property subject to a “fair and just” division by the Court with consideration given to the rights of the parties and to any children of the marriage.

In Texas, the Texas Constitution, Article XVI, Section 15 defines separate property as follows:

Section 15. Separate and community property of husband and wife –

“All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of on spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property; and spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse.”

A Texas Court cannot divest a spouse of their separate estate when the Court is dividing the marital estate in a divorce proceeding. The Court must award the separate property to the party that owns the interest. This rule has evolved since its first application in Eggemeyer to real property until it was inclusive to all property in Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982). Even though the Court in Eggemeyer prohibits against a Court’s divestiture of a party’s separate property, the Court did recognize one exception being that the Court may set aside either spouse’s separate real property, its income, rents, or other revenues for the support of the children of the marriage.

Whether your divorce case involves real property or simply personal property, it is important to discuss with your legal counsel the principles of Texas Community and Separate property laws in order for full disclosure to take place in the litigation process.