In a Texas divorce, the legal presumption is that all the property in your marriage is community property that you and your spouse own together. If you do have property that you want the court to recognize as your own separate property, you will need to convince the court of its separate nature. Your task is to provide the court with clear and convincing evidence to rebut the State of Texas’s presumption of community property.
Your Separate Property
Often separate property amounts to land, a business, and/or a building that one spouse brings into the marriage, that one spouse purchases (using separate property) during the course of the marriage, and/or that one spouse alone inherits or is gifted during the course of the marriage. If you own property that you believe is separate from the community property of your marriage, you will need to not only provide the court with supporting testimony but also with documentation of the separate nature of your property. If you have been married for many years, your property has probably gone through modifications of its own, and you will need to illustrate that it remained your property throughout.
The History of Your Property
In proving that your separate property is indeed separate, you will need to produce distinct verification related to its history. This task includes:
You will need to verify the time and manner that you acquired the separate property. This is known as the property’s inception of title, and it establishes that the property originally belonged to you alone.
You will need to demonstrate any mutations that the property underwent during your marriage. This is known as tracing, and it amounts to tracing the history of your property throughout your marriage. Your task is to show that your property remained separate throughout. Minor gaps in this tracing timeline, however, may not be detrimental to your case.
You will need to show that not only did you keep your property in your own name but that you also treated the property as separate property. While some commingling of separate and community property is not likely to alter the separate nature of your property, treating property as if it is community property could render it community property in the court’s view. Further, if you added your spouse’s name to the title, it became community property at that time.
Distinguishing between community property and separate property can become very complicated very quickly. Protect your property rights by working closely with an experienced Killeen divorce attorney.