Sunday, April 22, 2007

Dividing Marital Property In a Texas Divorce- Separate Property

It is well established that the court cannot divest a party of their separate property- see Cameron v. Cameron, 641 SW2d 210; and Eggemeyer v. Eggemeyer, 554 SW2d 137.

However, the court may award the use of separate property to the non-owner spouse for a limited time and for a defined purpose, see Gerami v. Gerami, 666 SW2d 241.

A husband’s separate property which was the parties’ homestead can be set aside to the wife for the use and benefit of the children while they are minors.

In Smith v. Rabago, 672 SW2d 38, the court held that a husband’s separate property homestead may be awarded to the wife for her use and occupancy.

The court cannot order separate property sold except in very narrow circumstances such as when the community has a lien on the separate property to secure a claim for reimbursement. In Halamaka v. Halamaka, 799 SW2d351, it was held that where a husband and wife each owned a ½ undivided separate property interest in real property, the divorce court would have authority to consider a partition suit with the divorce suit and order a partition and sale where the property could not be divided in kind.