Property Division Attorney in Dallas, Texas
What’s the difference between community and separate property?
What’s the difference between community and separate property?
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00:04
there’s a huge difference between
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community and separate property
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and it’s significant in that a court
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is only going to divide the community
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property
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of the parties separate property can’t
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be divided
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okay and so what is separate property
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because obviously you want to try to do
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what you can to make sure
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as much as separate property as you can
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because then it’s not subject to
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division so what is it
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it’s anything you own prior to marriage
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it’s any gift you’ve received from
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anyone so let’s say
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that you gave your spouse a rolex
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a week before uh you filed for divorce
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is that rolex can you sell it is it
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subject to division no
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it’s that person’s separate property
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it’s also you know any money you’ve
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received from inheritance
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so those two understanding the
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difference of those is significant
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then the problem that people get into is
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when you’ve got what i will refer to as
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co-mingled accounts so if you’ve got
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an account that you and your spouse are
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putting your paychecks into
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and then you and inherit half a million
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dollars from aunt betty
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and you put that money from aunt betty
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in that same account
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you’ve got co-mingled funds so then to
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determine
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what is separate property and what is
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community you generally need
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a forensic accountant who can go in
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there and do what is called tracing
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to determine what’s separate and what’s
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community obviously
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if it happened two days ago it’s not a
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problem most of the time
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if it happened five years ago and you
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have multiple transactions coming in and
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out
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of that account it’s a problem because
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there are additional rules that apply
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in presumptions that you have in texas
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on determining what’s separate and
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what’s community so
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the big thing is make sure you talk to a
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lawyer that knows what the hell they’re
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doing in that regard
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otherwise you can leave a lot on the
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table
Contact Mark Scroggins
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Dallas, TX family law attorney Mark Scroggins explains the difference between community and separate property. He points out that there’s a critical distinction between community and separate property, and it matters because a court can only divide community property. Separate property, on the other hand, cannot be divided.
Separate property includes anything owned prior to marriage, gifts received from others, or inheritances. For example, if someone received a Rolex as a gift from a friend, it remains that person’s separate property and is not subject to division in a divorce.
The challenge arises with commingled accounts. If a couple deposits paychecks into a joint account and then adds an inheritance—say half a million dollars from Aunt Betty—that money can become mixed with community funds. Determining what is separate and what is community usually requires a forensic accountant to perform tracing.
Recent transactions are straightforward, but if the funds have been commingled for years with multiple in-and-out transactions, the situation becomes complex. Texas law has specific rules and presumptions regarding separate and community property, so it’s essential to consult a lawyer experienced in this area. Without proper guidance, a client could leave significant assets on the table.
