There are four primary circumstances when property will be considered the separate property of one of the spouses upon dissolution of the marriage. In short, they are property acquired prior to marriage, property received by way of inheritance, certain portions of personal injury lawsuit awards, and property received as a gift.

Gifts may come from anyone, including the other spouse. One of the most common examples is the engagement ring. Is it a gift? Yes and no. It’s a conditional gift, given upon the condition that the marriage takes place. If the parties are going through a divorce, then we can generally surmise that there was a marriage and, therefore, the ring is the separate property of the wife (in most cases).

Another common question involves wedding gifts. If there was a gift to both the parties on their wedding day, are the gifts considered separate or community property? The answer is separate. If the gifts are identifiable as coming from the family of the husband, they might very often be found to be the separate property of the husband. If the gifts are identifiable as coming from the close friends of the wife (who were not the close friends of the husband), they will often be ruled the separate property of the wife. In general, the law does not provide for a gift to be made to the community estate, so how are the gifts made to the couple, either for the wedding or perhaps years after the wedding, characterized? In those circumstances, the gifts may be considered to be half the separate property of the husband and half the separate property of the wife.

As an example, the parties are given some mineral interests by some wealthy friends and those interests later prove to be quite valuable. The court may rule that these interests are owned half by the husband and half by the wife as their respective separate estates.

This becomes important when the division of the community estate is considered in terms of percentages. In Texas, the community estate is not necessarily divided fifty percent to each spouse. It is divided in a just and right (or fair) manner. That means one spouse may be awarded more than fifty percent of the community estate as a whole. If the oil interests are characterized as one-half the separate property of each spouse, the unequal division of the community estate would not affect the division of those mineral rights.

The art of characterizing property as community or separate takes the skill and experience of an attorney advanced in marital property law. Questions about your property should be directed to someone who has that skill and experience, like the attorneys at Orsinger, Nelson, Downing & Anderson.

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