What You Should Know About Separate Property

Separate PropertyWhat You Should Know About Separate Property

 As we’ve learned from previous articles, separate property belongs to one spouse – meaning, it was obtained before the marriage existed, received through inheritance, or as a gift. There is no split ownership between the spouses, and a court cannot legally award what already has been confirmed as separate property to the other spouse in a divorce case.

But while separate property cannot legally be divested, the court hearing a particular divorce case cannot be prevented from selling the property, encumbering it, or setting the property aside for the support of a minor child.

Let’s discuss these three actions.

Selling separate property

There are instances when a court forces the sale of separate property if it is necessary to divide the community estate. For example, when property consists of separate and community property and must be sold to divide the community portion of the property. This act is not considered a divestment of separate property per the Texas Family Code, “as long as all the proceeds that represent the spouse’s separate-property interest are awarded to that spouse.

Encumber separate property

By encumbering separate property, a court is placing an equitable lien on it to secure a benefit the separate property received under a reimbursement claim. Doing so under these circumstances is not considered a divestment of title even though the lien could result in a divestment of title if the spouse were to default on the note secured by the lien.

Set aside separate property for support of a minor child

So long as title to the property remains with the property-owning spouse, a court can do this in an effort to support a minor child. Per the Texas Family Code, this broad power has allowed courts to do the following:

  1. Grant one spouse a present possessory interest in the other spouses’ separate-property homestead until the duty to support the child ends.
  2. Award to one spouse the rents, revenues, and income from the other spouse’s separate property until the duty to support the child ends.

Please don’t hesitate to check our blog archive for any other topics that might interest you. And if you would like us to discuss a particular family law topic in these blogs, please contact our Nelson Law Group, PC office to let us know. We will be glad to help you.