As I discussed in a prior blog post and this page about property division, Texas is a community property state. Simply put, the majority of property acquired during a marriage is community property. That community property is jointly owned by both spouses. Under the Texas Family Code, community property is subject to a just and right division in a divorce. Community property may exist across multiple counties (for example a house in Tarrant County but bank accounts held in a bank in Dallas County) or even across multiple states; but any one family court in Texas can divide community property in a divorce. An important rule under the Texas Family Code regarding community property is the presumption that all property owned by the spouses is community property. This presumption is extremely important in addressing property division in a Texas divorce.
Proving separate property in a Bedford, Dallas, or Fort Worth divorce
Unless the spouses have a prenuptial or postnuptial agreement that changes the classification of property, all property acquired by the spouses before marriage is separate property of the spouse who owned the property prior to marriage. That separate property status remains through the marriage. Certain methods of acquiring property during marriage, such as gifts, are also separate property. Separate property is not subject to division between the spouses during a divorce.
The family courts begin with the presumption that all the property is community property subject to division. It is up to the spouse claiming separate property to prove it with clear and convincing evidence. If that spouse cannot prove the property is separate property then the court will treat the property as community property.
Many people find this rule unusual or unfair. The reason why the Texas Family Code presumes property is community property is because it is typically easier to prove what isn’t community property than try to prove every piece of property that is community property. In most cases it is more efficient to exclude certain property from the community estate or marital estate. It would be time consuming if you had to prove every piece of furniture, clothing, jewelry, etc. was community property. Instead, the presumption of community property requires the person seeking to avoid division to prove that the other spouse does not own a share of that property. That places the burden of proof on the person who stands to benefit from the determination of separate property.
Overcoming the presumption of community property in a Dallas-Fort Worth divorce
Overcoming the presumption of community property is usually not very difficult for significant property. Real estate and financial assets normally generate records of acquisition. Gifts or large amounts of cash or securities typically come with some form of financial record that indicates the recipient. Wills or estate administration that distributes gifts after the passing of an individual will also create or already have records that show how the property was acquired. These include the most common ways to acquire separate property. However, smaller gifts, such as clothing or appliances may be more difficult to prove by clear and convincing evidence but it is rare that small personal gifts become major issues in dividing property during a divorce.