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What is Separate Property?

Separate Property

The Texas Family Code and the Texas Constitution prohibit a court from giving a spouse’s separate property to the other spouse.  Texas Family Code defines community property as all property that is not separate property.  Thus, begging the question, "What is separate property?"  The general rule is that separate property consists of one of the following:

  1. property owned or claimed by the spouse before marriage;
  2. property acquired by the spouse during marriage by gift, devise, or descent; and
  3. the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Property owned by a spouse prior to marriage is that spouse's separate property and not subject to division.

Due to the presumption that all property at the time of divorce is community property, the spouse claiming that particular property is her separate property must be able to “trace” the disputed property back to its acquisition.  The standard of proof for such tracing is by “clear and convincing evidence.”  Property acquired during the marriage solely from a spouse’s separate property is the separate property of that spouse, a concept known as “mutation.”

The rule regarding gifts is applicable even for intra-spousal gifts; e.g., gifts given to a spouse for birthdays, Christmas, Valentine’s Day, and anniversaries are the sole separate property of the receiving spouse.  Divorcing spouses often are surprised to learn that the jewelry collection amassed by one spouse as a result of gifts is not community property, therefore, not subject to division.