Yes, maybe. Under Texas law, there are two types of property. There is separate property and community property. Before you get married, the property you own is considered separate property. Once you get married, all property that is acquired by either spouse is presumed to be community property. This means a court of law will take the position that, unless shown otherwise, all the property acquired during the marriage is community property. In other words, the spouse who claims a particular piece of property is separate property must overcome the legal presumption and prove it is in fact separate property by clear and convincing evidence.
The law does make certain exceptions to the character of certain types of property that might be acquired during the marriage. Any property that is acquired by gift or inheritance is considered separate property. Also, funds acquired as a result of a personal injury settlement or judgment is separate property unless a portion is for loss of earnings. However, keep in mind the court will presume any property acquired during marriage is community property. If you claim to have gifts or inheritance property, you must prove it to the court. If you meet this burden, then the court will decree that the gift or inheritance is set aside as your separate property.
This means that gifts you receive during marriage from anyone, even your spouse, are your separate property. An engagement ring is offered to another for the promise of marriage. Once you get married, the promise has been fulfilled and the ring now belongs to the spouse as his/her separate property. Any additional ring given in consideration of the marriage will be separate property. Therefore, the court will always rule that engagement rings and wedding rings are the separate property of the spouse who received the property. However, this can be tricky if there was not a ceremonial marriage and a spouse claims a common law marriage. If the court rules there was no common law marriage, the rings may have to be returned. If your spouse gives you a piece of jewelry for Valentine's Day, Christmas or at any time during the marriage, it is a gift and is your separate property.
What about your car? If your spouse gives you a car as a gift, then it is your separate property. If you or your spouse simply buys a car to be used by either of you, then it is community property. So you have to prove it was in fact a gift in order for it to be set aside as your separate property.
The act of depositing any money that is your separate property before marriage into a joint bank account with other monies acquired during the marriage is considered commingling of funds. Unless you can clearly trace the money back as your separate property, it will all be presumed community property. If your parents or other family members have given you money or you inherit money and you intend to keep it as your separate property, make sure it remains in a separate account. Otherwise, it could end up being divided in a divorce.
The significance of separate property is that a court cannot divest a spouse of their separate property. Therefore, once a court determines that a particular piece of property is separate property, then it must set that property aside to the separate property owner. The burden is upon a spouse to prove that property is his or her separate property by clear and convincing evidence.
Community property consists of all property, other than separate property acquired by either spouse during marriage. As stated above, property possessed by either spouse during the dissolution of the marriage is presumed to be community property, unless the spouse can prove that it is their separate property by clear and convincing evidence.
Community property is anything of value, such as real property, personal property, stocks, bonds, savings accounts, automobiles, boats, retirement benefits, 401(k) accounts, IRA accounts, stock options, copyright royalties, patents, income, rental income, life insurance and anything else of value.
Once the court determines that property is community property, then it will divide the property in such a way that the court believes is just and right. Most spouses will tend to agree to a division of their community property without court intervention. If so, the court will divide the property in accordance with the agreement if it hears testimony that the agreement is fair and equitable.
There are many pitfalls for the unwary when it comes to locating property and characterizing it as either separate or community. Some spouses will attempt to hide funds in bank accounts unknown to the other spouse. A spouse may attempt to give property to a relative and then later claim it was a gift. This is why you should have an attorney to advise you the moment you believe that divorce may be inevitable.