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Why are some assets separate property during a divorce?

On Behalf of | Aug 15, 2022 | Divorce |

If you have been with your spouse for more than a couple of years, the two of you have probably acquired hundreds of assets. Even if you do not feel like you are particularly wealthy, your marital estate is something you should protect. This is especially true during your divorce, when your soon-to-be ex-spouse may try to gain an unfair advantage.

Texas is one of only nine states in the U.S. that takes a community property approach to dividing marital estates during divorces. According to the Texas State Law Library, this approach means you and your husband or wife have an equal ownership interest in everything either of you acquired during your marriage.

Some property is separate from the marital estate

While it makes a great deal of sense to consider everything spouses accumulate during their marriages to be community property, logic and fairness dictate that some things should be separate from marital estates. Pieces of separate property you can probably keep after your divorce may include any of the following:

  • Assets either spouse exclusively owned before the marriage took place
  • Property either spouse exclusively inherited or received via gift during the marriage
  • Money one spouse exclusively receives from an injury settlement, with the exception of compensation for lost wages
  • Gifts one spouse makes to the other spouse

You can protect yourself with a marital agreement

If you are ready to file for divorce, it may be too late to draft a postnuptial agreement. Still, if there is still some life left in your marriage, your spouse may be amenable to negotiating one. You can protect yourself with this type of agreement by expressly defining which property is separate.

Ultimately, though, because classifying assets as separate or marital can be a highly technical endeavor, it is important to seek legal counsel as early in your divorce process as possible.