Separate Property in a Texas Divorce
In Texas, property acquired before the marriage or during it by gift, devise or descent is separate and cannot be divided, but all property possessed at divorce is presumed community until a spouse proves otherwise by clear and convincing evidence.
What is separate property
A spouse’s separate property consists of: (1) property owned or claimed before marriage; (2) property acquired during marriage by gift, devise or descent; and (3) the recovery for personal injuries sustained during marriage, except any recovery for loss of earning capacity during marriage (Tex. Fam. Code 3.001).
Clear and convincing evidence
Property possessed on dissolution is presumed community, and “the degree of proof necessary to establish that property is separate property is clear and convincing evidence” (3.003). Records that trace the asset to a premarital or gifted source decide most separate-property claims.
The court cannot divest separate property
In the decree the court confirms each spouse’s separate property to its owner; it may consider the relative size of the parties’ separate estates in dividing the community estate.
Commingling and tracing
Mixing separate funds with community funds can make an asset impossible to trace, in which case it is treated as community. Keep separate accounts and keep records.
Out-of-state property
Property acquired while domiciled elsewhere that would have been separate in Texas is awarded to the spouse as separate property (7.002(b)).
Keeping the right paperwork
Keep dated records that trace premarital and inherited property to its source and keep it in accounts in your name alone.
In the calculator
Enter premarital, gifted and inherited property as separate property in the Texas property division calculator so it stays out of the division.
Frequently asked questions
Is premarital property divided in Texas?
No. Property owned or claimed before the marriage is separate and the court cannot divest it.
Is an inheritance community property in Texas?
No. Property acquired during the marriage by gift, devise or descent is separate.
How do I prove separate property in Texas?
By clear and convincing evidence, usually through tracing records.
Is a personal injury award separate in Texas?
Yes, except the part for loss of earning capacity during the marriage.
Can separate property become community in Texas?
Commingling that prevents tracing can lead to its treatment as community.
Official sources
- Tex. Fam. Code chapter 7: sections 7.001, 7.002 and 7.009
- Tex. Fam. Code chapter 3: sections 3.001 to 3.003
- Texas Supreme Court, No. 16-0328 (just and right division, citing Murff v. Murff)
- IRS Publication 555: community property states
A local family law attorney can review your situation — many offer a free consultation.
This is general information, not legal advice. It is based on the cited Texas statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Texas attorney.