Texas Separate Property Laws

Austin Divorce Attorney Explains Community VS Separate Property

Video Transcript:

Jillian French:

You want to get an attorney involved to make sure that you are protecting your separate property rights.

Rob Rosenthal:

Do you know what separate property is and what that means when you're getting a divorce in Texas? We're going to find out today, because that's what we're going to ask the lawyer.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com and my guest is Austin attorney Jillian French with the Vaught Law Firm. Jillian, thank you for making some time to meet with us today.

Jillian French:

Thank you for having me.

Rob Rosenthal:

So explain to us, just start at the beginning, what does that mean? “Separate property” when you're going through the process of a divorce?

Jillian French:

Separate property is a particular area where items of property cannot be divided by the court. Separate property would be something that you owned prior to marriage, that was given to you as a gift or something that you got through an inheritance from someone who left you something in their will, or that you were the beneficiary of.

Rob Rosenthal:

But you must have gotten that inheritance before your marriage? Or does that matter if you got it after you were married?

Jillian French:

The gift and the inheritance can be obtained or given during the marriage and still retain separate property characteristics.

Rob Rosenthal:

Is that difficult to prove? Are there certain things you need to prove for whether it qualifies as separate property or not?

Jillian French:

Yes, you do. The biggest, most important thing about proving separate property is that testimony alone, in most cases, is going to be insufficient. So this means that if you, for example, inherited an IRA from a parent who had passed, and you took that money and you put it in a separate property account, you would need to go pull the statements to show that you took the money from the IRA, put it into another account, and where it went from there. If you co-mingle it with community property, then you're going to have to show how much of that new bank account that has both community and separate property has separate property in it, and it's your burden to prove how much of that is your separate property.

Rob Rosenthal:

Does this apply to real property too, like land that might have been handed down in the family and that sort of thing?

Jillian French:

It does. Real property is a little bit easier to trace in the sense that typically, if it's done correctly, there are deeds involved, and where one parent is signing over to the child a deed for ownership in the property or through the probate process that happens, that's a little bit easier to trace.

Rob Rosenthal:

What about when we're talking about the separate property? It seems to me sometimes that it could get co-mingled and maybe started out as separate, but then didn't stay separate. How do we work through that?

Jillian French:

One of the most common ways that this happens is through real estate; people will take separate property money that they had, they'll put it down on a house, and then the community will continue and they'll buy that house during the marriage and the community will continue to pay for that house. In those situations, you have a mixed characteristic in the inception of Title Rule, so the inception of Title Rule is from the time that a property was acquired, what characteristics did it have? At that point, it has some separate property characteristics and some community property characteristics. This involves getting an evaluation done, figuring out the percentage of separate property versus community, it ends up being a large math problem, but it can be figured out.

Rob Rosenthal:

Just from the little bit of time we've been talking it sounds extremely complicated and not something somebody should try to work out on their own.

Jillian French:

Definitely not. You definitely need to go talk to an attorney and a financial expert needs to be hired. The attorney will be able to tell you that. There are financial experts that lawyers work with regularly that do tracing exactly for separate and community property interests in real estate in financial accounts in everything.

Rob Rosenthal:

So if somebody is just beginning the process, maybe they're not even ready to file for divorce yet, is it the kind of thing they could talk to somebody like yourself and you tell them, “Hey, here's some of the documents you might want to start gathering”?

Jillian French:

Exactly. One of the things that I talk about when I do an initial consultation with a new client is I identify whether or not any separate property exists. If I find out it does, I immediately have them start gathering the documents and the information, because sometimes it can take a while to get that. Particularly if you have a longer marriage, and you're trying to get documents from over 10 years ago that may or may not still exist.

Rob Rosenthal:

I could see that sometimes, especially here in Texas, you have homesteads that have been handed down, “It was my great-great-great-grandfathers,” and I could see how that could get difficult to find the paperwork, the trail to prove that.

Jillian French:

So yeah, for real estate, each time that it changes hands there should be a deed or some sort of title transfer document that's filed with the county records; that doesn't always happen, or sometimes people try to do it themselves and it ends up confusing whether or not this is being done through an inheritance or whether or not it's a gift to both people in the marriage. So again, even if it's that kind of situation, you want to get an attorney involved to make sure that you are protecting your separate property rights.

Rob Rosenthal:

Super helpful information, even if only to learn that, okay, I can't do this myself. I need somebody like you to help me get through all this. Jillian, thank you so much for taking some time and answering our questions.

Jillian French:

No problem. Thank you for having me.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been Austin attorney Jillian French with the Vaught Law Firm. Remember, if you want the very best information and you want to make sure you can choose a lawyer that lawyers choose, be sure to visit askthelawyers.com. Thanks for watching. I'm Rob Rosenthal with AskTheLawyers™.

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