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Protecting your own wealth

Texas is a community property state. This means that all of the property in existence, both real(land) and personal(things) is presumed to be community. Community property is all property that is not separate. If you had property before the marriage and you used and can trace its use in acquisition of new property, there is a chance you can retain that new property separate character and designation in the divorce division. The standard and burden of proof required is by clear and convincing evidence. This is a substantially higher standard than the normal burden of a preponderance of the evidence.

Other property that can be found separate are all gifts from the other spouse or any other source that were received during the marriage. These include all Christmas, birthday, Valentines Day and similar special and customary gift giving times. Cards and other documentary evidence help bolster these claims to meet that clear and convincing standard. The other type of separate property is cash, land or personal property which you inherited. This can be shown through deeds, copies of cancelled checks from executors of an estate, and copies of wills.

The best way to protect your own wealth, that being your separate property is to keep it separate and not commingle it with your community property in a manner that prevents you from being able to clearly identify it. Do not put separate inheritance monies in your joint bank account that has both parties wages and earnings. Do not put land you inherited in just your name and deed it to your spouse. Be leery of thinking you can keep selling an item of property and whatever equity or proceeds you receive during the marriage, will still remain separate, if you sell it 2,3 to 4 times. Likely, it will lose its character and you will then be unable to clearly and convincingly show the court how it is really now all you separate property.

If you can prove separate property, a court cannot divest or take that property from you in a divorce. It is yours and is not subject to division with the other spouse. These are the basic ways to protect your own wealth in a divorce. When you obtain a large gift, inherited funds or property during the marriage, you should consult a family lawyer to obtain advice on how to protect the asset as your separate and have the best chance to continue to maintain its separate character. There are many many other technical rules of law, depending on the type of asset, cash, stocks, dividends, capital gains, oil and gas bonus money, proceeds, 401(k), retirement, stock options, profit sharing and others that must be considered and are beyond the scope of this blog post. Contact for more specific details and advice.



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