Why does my personal property become marital property?

On Behalf of | Mar 16, 2018 | Divorce

Texas is one of several states classified as a “community property state.” That doesn’t mean the entire population of Texas has access to your belongings whenever it so desires. Community property is just another term for marital property, assets owned jointly by a married couple. This means all of the stuff accumulated during the time you and your spouse are married equally belongs to both of you in the event of divorce.

Community property vs. separate property

Community and separate property are fairly distinguishable. Community property may be classified as:

  • Income earned by both spouses during the marriage

  • Property purchased during the marriage, like the family home or vehicles

  • Interest earned off of community property

  • Retirement plans

  • Bank accounts

Separate property is anything you obtained before you and your spouse married. Such examples are:

  • Income earned prior to marriage

  • Property owned prior to marriage

  • Assets obtained by gift or inheritance

In Texas, all property is assumed to be community unless there is ample evidence proving it is separate property.

Obtaining separate property while married

While everything you own and acquire during marriage is considered community, there are a few exceptions known as “gift, devise, or descent.” If someone gives you (specifically) something while you are married, that means it is your separate property. This gift can be anything, and doesn’t necessarily have to be related to a birthday or a holiday.

Devise and descent basically mean the same thing with one slight deviation. A devise is property gifted to you in the last will and testament of the donor, and a descent is when you receive something from the estate of the deceased because you are related to them in one way or another.

Mixing separate and community property

Sometimes what starts off as separate property can quickly transform into community property if the personal property is commingled (or co-mingled) with marital property and becomes indistinguishable. Commingling can happen if property that was once in only one spouse’s name is placed in both parties’ names. The most popular example of this is having an individual bank account prior to marriage and then adding your spouse to the account after you get married. It’s assumed that once your spouse is added, that the character of the property changes.

How To keep your property separate

In the event of a divorce, the value of community property will most likely be split right down the middle between the two of you. The best way of keeping your stuff assets personal is by creating a prenuptial agreement before marriage, or a postnuptial during marriage, which clearly and efficiently lays out what will still belong to you if you and your spouse part ways in the future.

Stay tuned for the next post, where I will be covering whether money inherited by one spouse during marriage beomes community property.