Protecting Separate Property in Marriage: Five Things You'll Wish You Knew When You Said 'I Do'

Marriage is a significant life milestone that many of us aspire to, and most of us have dreams of “happily ever after.” In reality, a substantial percentage of marriages in the United States end in divorce. According to the American Psychological Association, approximately 40-50% of first marriages don’t make it, and the numbers are even higher for second marriages, with approximately 60-67% ending in divorce.

The landscape of marriage is changing as well. People are waiting longer to tie the knot, with the average age at which women get married being 28.6 years and 30.4 years for men, according to 2021 statistics. This trend has brought an interesting shift to the table – more people are entering into marriages with accumulated wealth like 401(k) accounts, stock options, investments, and even real estate properties.

In the current climate of high lifetime gift tax exemptions, families are more intentionally transferring wealth to the next generation. These transfers often manifest as gifts, which are considered separate property in certain states, including Texas.

For all of these reasons, it is important to take proactive steps to protect your separate property even before your wedding day. Protecting separate property does not mean you are anticipating divorce; it’s about being financially responsible and safeguarding your assets.

What is Separate Property?

Separate property includes assets that belong to you individually, either acquired before marriage or obtained during the marriage as a gift, through inheritance, or as part of a personal injury settlement. Separate property will not be divided upon divorce if you can prove its status with clear and convincing evidence.

Five Ways to Protect Your Separate Property

Maintain detailed financial records and retain real estate transaction documents. Save digital copies of your bank account statements, preferably in Excel or CSV format, beginning with the month before your wedding. Financial institutions typically retain records for only seven years. Keep copies of important documents related to the purchase and sale of pre-marital real estate or real estate acquired during the marriage with separate property. This includes deeds, HUD settlement statements, wire transfer confirmations and bank statements showing the flow of funds.

Avoid commingling of funds. Open a new joint bank account after marriage for depositing paychecks and paying shared living expenses. Deposit any gifts, inheritance or personal injury recoveries received during marriage into a separate account. Avoid transferring funds between jointly owned and separate financial accounts to maintain a clear paper trail.

Consider the implications of adding your spouse to your separate property deed. There may be occasions, such as a refinancing or as part of your estate planning, when you consider adding your spouse to the deed of your separate property asset. Be aware that doing so may be considered an interspousal gift. If this is not your intention, document the purpose clearly.

Keep separate property separate. Avoid using separate property funds to cover community living expenses or to enhance or improve community assets. Keeping these expenses separate helps maintain the distinction between community and separate property.

Seek advice from an experienced divorce attorney or financial expert. Decisions made before you tie the knot, and throughout your marriage, can have enduring consequences. Ordinary life events, such as the refinancing of assets, home renovations, or investment decisions, can significantly impact the division of marital property during divorce proceedings.

Marriage is a wonderful journey, but everyone should be prepared for the unexpected. By being proactive and keeping detailed records, you will have the evidence you need to protect what’s rightfully yours if you ever find yourself in the difficult process of divorce.

It is always wise to consult with a legal and financial professional for advice tailored to your specific situation. Taking these precautions can provide peace of mind and help you navigate the complexities of marriage and property ownership in community property states. Contact us for more information.

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