Is it Marital Property or Separate Property?

division of marital property

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In a Texas divorce, the presumption is that the property you own throughout your marriage is community property that will be divided in a just and right manner in the divorce. This presumption, however, can be rebutted. Generally, property that one of you owned prior to marriage (and kept separate) or that one of you received as a gift or inheritance during your marriage is retained by the owner as separate property in the event of a divorce. Proving that property is separate property, however, can be quite challenging. (Read more: What is the Difference between Community and Separate Property?)

Proving Separate Ownership

The spouse who claims separate ownership bears the burden of proof. If he or she cannot prove the separate nature of the property in question, it will be classified as community property and divided as such. The burden of proof to establish property as separate property is by clear and convincing evidence, which is a heightened standard compared to the preponderance of the evidence. Preponderance of the evidence means that one spouse or the other need only tip the balance to his or her side.

Tracing Separate Ownership

The key to proving separate ownership is establishing documentation that traces the property's pathway throughout your marriage. Often, properties will change form over the years, for example:

  • If you sold the property for cash that you invested in something else
  • If you exchanged the property for another form of property that you retain as separate property
  • If you grew your separate property into a larger investment over the course of your marriage (your original property may remain your own, but the growth may be identified as community property)

Any of these situations can affect the separateness of your property and will need to be traced. If you can establish a paper trail that continues to link the original separate property to you, you will be well on your way to making your case of separate ownership.

Complicating Factors

Establishing the separateness of property can get very complicated very quickly. The fact is that most people do not enter into marriage with the intention of keeping their property separate, and over the years, it is only natural for properties to comingle. A variety of factors can play a role in whether a property will ultimately be deemed separate or marital property, including:

If You Are Facing a Divorce, Consult with an Experienced Central Texas Divorce Attorney Today

After child custody arrangements, the division of property is generally the most contested component of any divorce. Attorney Brett Pritchard at The Law Office of Brett H. Pritchard in Central Texas is committed to protecting your property rights throughout the divorce process. Mr. Pritchard has the experience, skill, and compassion to help you, so please do not hesitate to contact or call us at (254) 220-4225 for more information today.


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