Can My Separate Property Become Marital Property in a Divorce? 

 Posted on December 30, 2024 in Divorce

In Texas, dividing property during a divorce is often a complex process, especially when trying to distinguish between separate and marital property. Texas is a community property state, meaning most property acquired during the marriage is jointly owned by both spouses and subject to division in a divorce.

However, separate property, which belongs solely to one spouse, is not divided during a divorce. This distinction can become blurred when separate property becomes marital property, in part or in whole. Understanding how this happens and the consequences can help you protect your interests, and our Texas family lawyers are here to help.

What is Separate Property in Texas?

Under Texas law, separate property includes assets owned by one spouse before the marriage, as well as gifts, inheritances, and personal injury settlements received during the marriage. This type of property is not subject to division in a divorce, but proving an asset is separate property requires clear and convincing evidence, such as documentation or financial records.

How Separate Property Becomes Marital Property

In some cases, separate property can lose its status and become marital property, subject to division during a divorce. This process typically occurs when the property is mixed with community property, a process known as commingling. For example:

• If one spouse inherits money and deposits it into a joint bank account used for household expenses, some or all of that money may be considered commingled and treated as community property.

• A house owned by one spouse before the marriage can become marital property if both spouses contribute to mortgage payments, renovations, or other expenses using community funds.

• Another way separate property can become marital property is through transmutation, which occurs when a spouse intentionally changes the character of the property. For instance, retitling a separately owned vehicle in both spouses’ names may indicate an intention to treat it as community property.

How to Prove Property is Yours in a Divorce

Disputes often arise over whether property is still separate or has become marital property. In these cases, the spouse claiming the asset is separate must trace its origin and prove it was not intentionally converted into marital property. This may involve providing detailed financial records, deeds, or other documentation showing the original source and how it was used.

However, tracing can become complicated when records are incomplete, or community funds have been used alongside separate funds to improve or maintain a property. Courts may apply a reimbursement principle to address these situations. For example, if community funds were used to pay down the mortgage on a house owned before the marriage, the other spouse might have a claim to reimbursement for those contributions.

Reclassified Property and Asset Division

When separate property becomes marital property, it can significantly impact how assets are divided during a divorce. In some cases, it may mean losing exclusive rights to an asset you intended to keep. For this reason, understanding how to maintain the character of separate property is essential. Steps such as keeping inherited money in a separate account or documenting contributions to property owned before the marriage can help protect your assets.

Contact a San Antonio, TX Divorce Lawyer

Property division is a critical part of the divorce process, and disputes over separate versus marital property can be challenging to navigate. A Bexar County, TX property division attorney at Brandon Wong & Associates can help you understand the law, gather evidence to prove your property is yours, and fight for your interests during your divorce. Contact us at 210-201-3832 today to schedule a consultation and discuss your case.