Texas courts begin with the presumption that all assets acquired during a marriage are marital (community) property. As such, they must be divided in a just and right manner during divorce. However, if one or both spouses claim a particular asset as separate property, the burden of proof lies with the spouse making that claim.
Separate property belongs solely to the original owner and is not subject to division, but proving this can be a challenge.
If you are facing divorce, turn to an experienced Killeen property division attorney to help protect your financial rights. Start with a FREE consultation to understand what steps you should take.
Distinguishing Between Marital and Separate Property
Determining what is marital property and what is separate property will be essential to your post-divorce finances and future.
Marital Property
Marital (or community) property includes almost all assets acquired during the marriage, regardless of whose name is on the title or who paid for it. Exceptions include the following types of property:
Gifts received by one spouse
Inheritances received individually
Compensation for pain and suffering in a personal injury claim
The following types of property are generally considered to be community property:
Real estate purchased during the marriage
Income earned by either spouse
Businesses started during the marriage
Debts accrued during the marriage
Community property will be divided between you and your divorcing spouse during the divorce process.
Separate Property
Separate property typically includes the following categories of property:
Assets owned by a spouse before marriage
Gifts or inheritances received individually during marriage
Compensation for pain and suffering in a personal injury case
However, keeping these assets separate throughout the marriage is essential. Financial commingling (mixing separate and marital funds) can compromise an asset’s separate status.
In Texas, separate property must be proven by clear and convincing evidence—a higher standard than a simple "more likely than not" threshold.
If you're uncertain about how to protect your separate property, speak with a property division lawyer today.
The Just and Right Division of Marital Property
While community property can be divided directly down the middle in a Texas divorce, this isn’t always the case. Texas courts consider several factors when dividing community property:
Each spouse's age and health
Earning capacity and disparities
Size of the marital estate and each spouse's separate estate
Tax implications of the division
Fraud or waste of marital assets
Fault in the breakup of the marriage (even in no-fault divorces)
The goal is fairness, not necessarily a 50/50 split. Identifying separate property clearly is critical to ensuring an equitable division.
To learn how these factors may affect your outcome, consult with a skilled divorce attorney.
Documenting Separate Assets
To rebut the assumption that all assets are marital, strong documentation is key. This may include the following kinds of evidence:
Real Property
Title deed dated prior to the marriage
Inheritances
Will or trust documents
Probate court orders
Transfer records and account statements
Gifts
Gift letters
Cards, notes, or written communication from the giver
Pain and Suffering Awards from Personal Injury Cases
Settlement agreements
Court orders
Payment records
Proper documentation and a clear paper trail can make or break your claim to a separate asset. Don't wait—start gathering documentation now with guidance from your skilled Killeen divorce attorney.
The Tracing Process
If a separate asset has been commingled with marital property, you must trace it back to its origin to prove its separate status. Tracing involves tracking how the asset moved and evolved over time.
Some assets, like retirement accounts, are identified as a mixture of both community and separate property. The value of the account at the time of marriage belongs to the named spouse, but the amount that the financial tool grew in value over the course of the marriage is a marital asset.
In other words, the tracing process is often complex. Contact a skilled Killeen divorce lawyer to help you navigate the tracing process and protect your property.
Inflow and Outflow of Cash
To establish a traceable link, you'll need to show the inflow (deposits and investments) and outflow (spending and transfers) connected to the asset. The following documents can be useful in this effort:
Receipts
Bank statements
Purchase and sale agreements
Forensic Accounting Support
For high-value or heavily commingled assets, a forensic accountant can be essential. These professionals analyze asset histories, provide expert reports, and strengthen your legal argument for separate property.
Without forensic accounting, some of your separate property may be lost to you. Over the years of a marriage, the financial twists and turns that your separate assets follow can be difficult to identify, which can make your forensic accountant’s efforts invaluable. Your practiced property division attorney will help to ensure that you have the professionals you need on your side.
Tracing Schedules and Reports
Tracing schedules and reports can help you prove the status of your assets as marital, separate, or commingled.
Tracing Schedules
Tracing schedules detail the flow of specific funds across accounts or over time. The goal is pinpointing the transactions that led your separate asset to its current commingled state. These schedules help outline exactly where the dividing line between marital and separate property lies.
Tracing Reports
Tracing reports offer professional conclusions from a forensic accountant, clarifying the characterization of assets as separate, marital, or a mix of both.
A skilled Killeen divorce attorney will help you organize documentation and enlist the right experts to protect what is rightfully yours. Take proactive steps now to safeguard your financial future.
FAQ About Property Division in a Texas Divorce
If you are facing a divorce and have concerns about keeping your separate property separate, review the answers to these questions frequently asked by others in your situation.
How Do I Know What’s Separate and What’s Marital?
If an asset was acquired during the marriage, it is presumed marital unless one of the following circumstances apply:
The asset was bought with separate funds
The asset was gifted or inherited solely by one spouse
The asset was awarded as pain and suffering in a personal injury case
If it was owned before marriage and kept separate, it may remain separate—but proof is required.
Will the Court Take My Word for It?
The court presumes that all assets in a divorce are community property. You must provide clear and convincing evidence before anything is conceded as separate property.
How Do I Prove that an Asset Belongs to Me Alone?
To prove that an asset is separate, use documentation to show the asset’s origin and maintain records that prevent commingling. If an asset has been commingled with marital property, use tracing to track its history.
What Does Commingled Mean in Divorce?
"Commingled" in the context of property division refers to mixing separate and marital funds or property, which may blur ownership distinctions.
Can Commingled Assets Always Be Separated?
Forensic accounting can often distinguish separate assets from community property. However, some situations are complicated enough that forensic accountants aren't able to sort them out. If tracing is impossible, courts may treat the asset as entirely marital.
What Level of Proof Do I Need for Separate Assets?
Showing that an asset is separate property requires clear and convincing evidence. This is a high standard requiring thorough records and sometimes expert testimony.
Work with an Experienced Killeen Property Division Attorney
Proving the separate nature of your property can be a complex task, especially when assets are commingled. Brett Pritchard at the Law Office of Brett H. Pritchard is a knowledgeable Killeen property division attorney who is well-equipped to guide you through your case.
Contact us today or call (254) 781-4222 to schedule your FREE consultation. Let us help you secure what is rightfully yours.