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Keeping separate property separate in marriage, P.2

In our last post, we began looking at the issue of protecting one’s property from divorce. As we noted, one of the most effective ways to do this is to carefully negotiate and properly execute a prenuptial agreement. In the event that this is not possible for a couple, there are still some steps that can be taken to maintain some financial separation from a spouse.

A key concept to be aware of in property division is commingling, which refers to the intermixing of the separate property of each spouse. When a couple commingles assets, it becomes difficult—and in some cases, impossible—to determine whose assets are whose. 

As we noted last time, Texas courts presume property possessed by either spouse at the time of a divorce filing to be community property and a spouse must present clear and convincing evidence to prove to the contrary. This is a high standard to meet, and so couples need to make sure property is very clearly separate property to prevent it from being deemed community property, and therefore subject to division, in divorce.

Several big things a couple can do to avoid commingling is to avoid jointly titling property, maintain separate checking, savings, credit card, retirement and other financial accounts, and to use separate funds to maintain separate property. In addition, joint possession of separate property really should be avoided as well, since courts in Texas will presume joint ownership when there is joint possession.

In our next post, we’ll continue looking at this important topic.

Sources:, “5 Ways to Protect Your Money Without a Prenup,” Rebecca Zung, May 10, 2015., “How to stay together while keeping your money separate,” March 16, 2016. 

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