I bought our house before we got married, is that separate property?

You brought some property into your marriage, accumulated some property along the way, and now you are facing a divorce.  You need advice about what is really yours, hers, and in between.  You are not alone to have commingled property—many people have concerns about property and what ultimately happens to it, especially if it is a house or some other large asset.

Many people get confused and think that whatever is in their name is their property and same goes for their spouse.  Unfortunately, that is not how it works in Texas.  We are a community property state and the character or nature of the property depends upon its inception of title—when did you acquire that piece of property.  Community property is anything acquired during marriage, no matter whose name it is in.  Separate property is anything acquired prior to marriage or by gift, devise or descent during marriage.  Therefore, if you bought your home prior to marriage then it is your separate property.

But, now you are concerned because you deeded the home to both of your names after you were married.  However, that is not enough to convert separate property into community property under Texas Family Code Section 4.202.  In fact, subsection (a) states that you must have an agreement to convert separate into community property and that agreement must “(1) be in writing; be signed by the spouses; identify the property being converted; and specify that the property is being converted from separate property into the spouses’ community property; (2) and it is enforceable without consideration.”

Another issue you might need to address is that of community reimbursement.  If you did buy your house prior to marriage, it is your separate property; however, if you are still paying on the mortgage during your marriage then your spouse could have a community reimbursement claim.  Reason being community property (income of you and your spouse) were used to enhance your separate property.  So, you could keep your home but may need to look at the specifics of what that reimbursement claim might entail.

Guest & Gray has the experience you need to address these complicated issues that can come about.  Call today to schedule an appointment.

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