When a couple gets divorced, there are financial matters that need to be dealt with – in the absence of a settlement agreement, the family court must divide up the couple’s property in a way that is fair to both parties. Sometimes, this division can be tricky, especially if the marriage has been long and each person’s funds are comingled with the other person’s funds. Ultimately, the court focuses largely on marital v. non-marital property when making this calculus during a couple’s divorce.
Marital v. Non-Marital Property
In dividing a couple’s assets, the court looks at which property is marital, or community, property, and which property is non-marital, or individual, property. Each person’s income earned during the marriage, for example, is considered marital property. Importantly, the court will only divide up property that is marital.
Typically, an inheritance or gift is non-marital property. This means that if you have inherited money from your loved ones and you find yourself in the midst of a divorce, that gift will still likely be yours and yours alone. Of course, there are complicating factors to consider.
When Does an Inheritance Become Susceptible to Division?
If you have used your inheritance during your marriage, the inheritance might be marital property. For example, if you used the money you received from your parents to make a down payment on a house, and that house belongs to both you and your spouse, the inheritance has become marital property (and is therefore susceptible to division by the family court). If you used the inheritance to buy a joint car, the car is marital property.
To solve this thorny issue, many couples opt for a premarital agreement that explicitly states which property is marital and which is non-marital. That way, in case of a divorce, the parties are bound by an agreement, and the court is less likely to have to get involved.
Either way, though, the issue of inheritance during a divorce is tricky, and if you have doubts about how your inheritance is affected by your divorce, speak with an attorney that can take your individual circumstances into account. Divorce law in Texas represents an intersection between family law and estate planning law, so you will want to talk to an expert in both fields to get the best advice.
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