Skip to content 
Property division can lead to serious disputes during divorce, especially when one spouse claims full ownership of an asset. The line between what belongs to both and what belongs to one isn’t always clear. In Texas, understanding what is considered separate property can prevent confusion and keep you from losing something that should stay yours. Texas law draws a strong line between shared assets and those that fall outside the marriage. Knowing what fits into that second category matters—and so does how you handle it.
What Is Considered Separate Property in a Divorce in Texas?
Texas follows community property laws. That means most assets acquired during the marriage belong to both spouses. Still, not everything gets split in half during a divorce. Some assets fall under a different category called separate property. Understanding what counts as separate property can help protect your rights and prevent unnecessary disputes.
What Does Separate Property Mean in Texas?
Separate property belongs to only one spouse. It is not up for division during a divorce. The Texas Family Code defines it clearly, and courts require solid proof before accepting property as separate.
To qualify as separate, the property must meet at least one of the following conditions:
- Acquired by a spouse before the marriage
- Received as a gift or inheritance
- Recovered for personal injury, except for lost income
- Designated as separate in a legal agreement, like a prenup
Once classified, separate property stays with the original owner unless commingled without documentation.
Property You Owned Before the Marriage
Anything you owned before getting married generally counts as separate property. That includes:
- Bank accounts
- Real estate
- Vehicles
- Personal belongings
- Business ownership
Let’s say you had a condo before tying the knot. As long as you didn’t add your spouse’s name to the title or mix funds, that condo remains yours. Problems often arise when couples use marital income to improve or maintain the asset. In that case, your spouse may seek reimbursement, even if the property itself is not divided.
Inheritances and Gifts
Assets passed down by relatives or given to one spouse qualify as separate property. These don’t become joint assets just because they happened during the marriage.
Example scenarios:
- Your aunt leaves you $20,000 in her will
- Your parents gift you a car for your birthday
- A friend gives you a piece of jewelry meant only for you
As long as the gift was clearly intended for you alone and was not deposited into a shared account or used jointly, it stays separate.
Compensation for Personal Injury
If you receive compensation after a personal injury claim, the money is often considered separate. But there’s a catch.
Only the portion meant to compensate for pain and suffering, medical bills, or emotional distress is separate. If you’re reimbursed for lost wages, that amount can be seen as community property, especially if the injury occurred while you were married.
Prenuptial and Postnuptial Agreements
You and your spouse can agree in writing to keep specific assets separate. This is done through a prenuptial (before marriage) or postnuptial (after marriage) agreement.
To hold up in court, these agreements must be:
- Written
- Voluntarily signed
- Not fraudulent or forced
With one in place, you can protect future income, investments, business interests, or family assets. Without one, those same items may be treated as shared.
What Happens When Separate Property Gets Mixed?
Even if property starts out separate, it can turn into community property if it’s mixed with joint assets. This is called commingling.
Common Examples of Commingling
- Depositing inheritance money into a joint account
- Using marital income to pay off a mortgage on a separate property
- Adding a spouse’s name to a deed
To maintain separate status, you must keep clear records. Bank statements, title documents, and contracts can serve as proof. Without documentation, the court may assume the asset is shared.
Proving Separate Property in Court
Texas law places the burden of proof on the person claiming an asset is separate. You need clear and convincing evidence, which is a higher standard than in most civil matters.
Useful Documentation Includes:
- Deeds showing sole ownership
- Bank records showing a separate account
- Letters or wills confirming a gift or inheritance
- Contracts like prenuptial or postnuptial agreements
Without strong proof, the court will classify the asset as community property and include it in the division.
Can Separate Property Earn Income?
Yes, and this is where things get tricky. In Texas, income from separate property is community property unless otherwise stated in a legal agreement.
For example:
- You own a rental home before marriage. The home remains separate, but the rental income may be split.
- Your separate savings earn interest. That interest is typically shared.
This distinction becomes important when dividing assets and negotiating support or reimbursement.
What If Property Increases in Value?
Appreciation of separate property remains separate, but again, there’s nuance.
Say you owned a business before marriage. The business grows during the marriage. That growth is separate only if it happened without the help of your spouse or joint funds.
If your spouse helped run the business or you reinvested marital income, the court may award your spouse part of the increase or grant reimbursement.
How the Court Handles Disputes Over Property
If both parties disagree about the status of an asset, the court steps in. Judges examine:
- The timing of the purchase
- Whose name is on the title
- Where the money came from
- Whether there’s a valid agreement in place
- How the asset was used during the marriage
Courts lean on documentation and credible testimony. If records are unclear or missing, the court may label the asset as shared.
Why It Matters
Proper classification affects everything—property division, spousal support, even child-related matters. Misunderstanding the difference between separate and community property can lead to lost assets or unfair settlements.
Texas courts do not divide separate property during divorce, but you must prove which assets fall under that category. Failing to do so puts those items at risk.
Tips to Protect Your Separate Property
Here’s how you can avoid losing what rightfully belongs to you:
- Keep records
Save everything related to the asset—purchase contracts, receipts, bank statements, letters, or legal agreements. - Don’t mix funds
Keep separate property in separate accounts. Avoid adding your spouse’s name or using the asset in ways that appear joint. - Use legal agreements
A prenuptial or postnuptial agreement can protect your future and eliminate confusion. - Stay organized
Track any income or appreciation tied to separate property. You may need that info to defend your claim in court. - Consult a divorce attorney
Every case is different. A lawyer can help confirm what qualifies as separate and guide you on how to protect it.
Conclusion
Texas divorce law makes a clear distinction between community and separate property. Still, what looks obvious to you might not seem so to a court. Document everything, keep accounts clean, and seek legal guidance if needed. Doing so can help protect your financial future and give you peace of mind during a stressful time.
Other Related Articles
- How Is Income From Separate Property Treated in a Texas Divorce?
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- How Do You Keep Separate Property Separate in Texas?
- Who Inherits Separate Property in Texas?
- How Does Separate Property Become Marital Property in Texas?
- How Do I Prove Separate Property in a Divorce in Texas?
- Separate property as an issue in a Texas divorce
- How to Protect Your Separate Property in Divorce
- How to Retain Your Separate Property in Divorce
- How is a separate property defined?
Questions about the material presented in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations help you learn more about Texas family law and understand how filing a divorce or child custody case may impact your family’s circumstances.
