Too many times, clients only start to think in terms of community or separate property when it is too late and they are going through a divorce. They may have had property before marriage or received an inheritance. However, during the marriage, they have commingled the separate property with community property and did not keep good enough records to show where the property originally came from. Unfortunately, when that person gets a divorce, it is highly likely that they will be unable to prove the separate character of their property.
Family law attorneys can be used for more than getting a client through a divorce. Indeed, a Dallas divorce lawyer can help you plan to protect your separate property even before you are married. To understand how to keep your separate property separate, you probably need to know what separate property is, and how it is defined under Texas law. Here is a brief over of separate v. community property:
When two people get divorced, the Court divides the community property, but cannot divest someone of his or her separate property. In other words, if the community property consists of $1 million and one spouses has $1 million of separate property, the spouse will receive his or her $1 million of separate in addition to a just and right portion of the $1 million of separate property. The Texas Family Code defines separate property as property acquired before marriage, or after marriage by gift, devise or descent. Community property is any property that is not separate property. Marital property is presumed to be community property, and separate property must be proved by clear and convincing evidence. Moreover, income from separate property generally is community property.
The community property presumption can be overcome using the inception-of-title rule, which means that a property’s character is based on the time and manner in which it was first acquired. Once the character of the property is established under the inception-of-title, the character will not change because of mutations in the property’s form, appreciation in value, or because community or separate property is used to improve or complete the purchase of the property.
How can you use this introduction on Texas marital property law to help you keep your separate property separate?
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