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Separate Property

By Laura Lemus

Often the last thing clients think about during their marriage is taking steps to prove their separate property in the event of divorce. However, if there is separate property, such as retirement accounts or homes from prior to the marriage or gifts and inheritances, it can make a huge difference.

Texas courts assume all the property owned by the parties at divorce is community property that can be divided, unless it is clearly proven to be separate property. Here are a few tips that will assist in proving separate property should that become necessary.

First, utilize prenuptial or marital agreements. If a person has significant property prior to marriage or comes into a significant gift or inheritance after marriage, properly drafted marital agreements can help to define and detail what property is separate property and can be used head off arguments in divorce.

Second, to the extent possible, keep the separate property separate. For example, if there is significant money in a bank account prior to marriage, open a new account with your spouse for money earned after marriage. Only deposit separate funds into the separate account.

Finally, documentation is the key. For example, to prove the separate portion of a 401K account, having all statements from the date of marriage forward is ideal. It is important to consult with a knowledgeable attorney to discuss the particular assets you wish to safeguard as separate property.

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