In Texas, all marital property is characterized as separate, community, or mixed. If a couple is going through a divorce all of the property must be characterized as one of those three to determine how to divide the community property and what property is a spouse’s separate property.
Generally, separate property is property that was acquired or created apart from the marriage. It is property that does not exist because of or as a consequence of the marriage.
For example, property bought or acquired before the marriage is separate property. Also, property acquired as inheritance for one spouse, or property acquired as a third party gift to one spouse would all be separate property. Other examples of separate property would include property that was bought with separate property and money recovered as part of a personal injury claim.
In a divorce case, the court is prohibited from awarding one spouse’s separate party to the other spouse. The court must award all separate property to that same spouse. So it is very important that you and your attorney make a correct determination as to what is separate and what is community property. Only after you have made that determination can you decide what really needs to be negotiated between the spouses.
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