In a marriage dissolution or divorce, the character of a property becomes an area of assessment when it comes to dividing assets. The character of a property refers to whether the property is separate or community. In other words, does the property solely belong to one spouse or is it part of the marital estate and subject to division. The following is a list of property considered to be separate property:

1. Property acquired before marriage

Property you acquired before the date of your marriage is separate property and is not subject to division.

2. Gifts

Gifts are separate property, regardless of whether you received the gift before or during your marriage.

3. Inheritance

Property you acquired through a will or inherited from a family member is separate property.

4. Personal Injury recovery

Compensation you receive for personal injury, whether before or during the marriage, is separate property. This includes recovery for bodily injury, mental anguish, and pain and suffering.

5. Agreement

If the property was acquired by agreement, it is considered separate property. There are two types of agreements that fall under this rule – partition/exchange agreements and right-of-survivorship agreements.

Partition/exchange agreements are created when spouses agree certain property, already acquired or will acquire, will remain separate property.

Right-of-survivorship agreements are created when spouses agree all the property listed in the agreement will become the separate property of the surviving spouse after the other spouse dies.

6. Property purchased with separate funds

If you spent your own money and resources to purchase the property, it is considered separate property. You must be able to prove the property was purchased with separate funds.

7. Property purchased with separate credit

If you used your own credit line to purchase the property, it is considered separate property. You must be able to prove the property was purchased with separate credit.

8. Income from spousal gifts

If you received a gift from your spouse, any income generated from that gift is separate property.

9. Property purchased from separate property and both spouses named on title

If one spouse purchases property using separate property but titles the property in both spouses name, it is presumed the spouse intended to gift a one-half interest in the property to the other spouse.

10. Property purchased while living in another state

In Texas, there is a rule referred to as quasi-separate property. It is in essence separate property and treated as such. If all of the following factors are met, the property will be deemed separate property: 1) a divorce is pending, 2) you are living in another state, 3) you purchased property in that state, and 4) the property would be considered separate property in Texas had you been living in Texas when you acquired it.

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