High Asset Divorces: Separate Property Real Estate Q&A

It is important to know what happens to your homestead residence if it was purchased prior to marriage and other assets formed into a trust before marriage without a prenuptial agreement.

Question: If an individual has a prior separate property residence, does the individual retain all interest in their property.
Answer: Yes, the separate property owner shall retain all interest including increase in value but certain exceptions apply.

Exceptions such as reimbursement claims for time, toil, and effort, payment of debt, and improvement of property may be granted to the spouse as an offset or an award. One example is if the community property income during the marriage paid down the note of the separate property, then the spouse shall be entitled to ½ of the equity paid during the time of the marriage, but not the interest paid. 

Question: If an individual gets divorced can the Court force sale his separate property?
Answer: Generally, no. If the property is a homestead then there is an added protections. A court generally cannot force partition another individuals property, but there the years there have been multiple exceptions to which trial judges attempt to infringe on an individual’s separate property rights.

First, if property is purchased prior to marriage it likely be classified as separate property. The owner of the house must insure that during the marriage the individual does not place the spouse on the properties deed, nor refinance the house with the house. If an individual does this be costly, painful, but necessary. Many other factors such as summary judgements or motions to exclude may increase fees. It is important to be confident with your attorney and find a firm that has experience with higher assets cases to insure the flow and strategy of the litigation fulfills your goals. 

Question: How can I protect my separate property residence from forced sale or other exception to all separate property owner retaining equity?
Answer: A separate property marital owner can protect the separate property residence by entering into a prenuptial or postnuptial agreement.

A prenuptial agreement is a legally binding contract signed before marriage outlining how assets, debts, and spousal support, if any, will be handled in case of divorce or death. A postnuptial agreement is similar to a prenuptial agreement but is signed after the marriage. 

A separate property residence should be identified in a prenuptial or postnuptial agreement in order to protect the rights of the separate property owner. 

Dallas High Asset Divorce Attorneys
Nacol Law Firm P.C. 
(972) 690-3333