Will you be able to keep the home you owned before marriage? The frustrating answer is that “it depends.” While most things that you own before a marital union are to be considered “separate property”, there are many situations in which your spouse may have a legitimate legal claim to that asset. To understand what may happen to a home at the end of a marriage, it is helpful to take a look at how the State of Texas divides and classifies property.
Marital and Separate Property
During the process of divorce, owned property will fall into the category of separate or community (marital) property, with only the latter allowed to be divided by a court. Separate property can include assets that were obtained before marriage, received as a gift (at any time), or an inheritance. Any income resulting from separate properties may also qualify.
On the other hand, there is a presumption that any item that is not separate property and was earned or acquired during a marriage is considered community property. While these distinctions may seem straightforward, many factors can lead to complications. In certain cases, what would otherwise be separate property can be considered jointly owned.
Two situations which may allow spouses to claim ownership over previously separate property can include:
- Active appreciation: If separate property gains value over the course of your marriage, it typically does so either actively or passively. In the case that a home gains value only through inflation and it was owned outright before a marriage, it can be seen as passive appreciation and will not result in a loss to the owner. However, if the house in question is the marital home lived in by you and your spouse, any shared contribution may give your spouse a claim to shared ownership.
- Commingling of property: Commingling occurs when shared, marital funds are invested into an asset. The act of investing financial resources considered to be community property into a home may allow it to be counted as community property itself. During a marriage, when both spouses actively use the home, commingling of property can be hard to avoid and can lead to disputes in court.
Questions about the Division of Assets? Call (713) 909-7323
Issues regarding separate property, marital property, and the division of assets can be tremendously intricate and spouses may be left to fight for their fair share of a divorce settlement. If your marriage has begun to break down or you expect that a divorce may be approaching, our Houston divorce attorneys can work with you during every step to see that your interests are protected. At Hendershot, Cannon & Hisey, P.C., our legal team possesses more than 150 years of combined experience and can help you to understand your legal options.
Contact us online or by phone to request an initial consultation with our firm today.