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What Is Needed to Prove Separate Property at the Time of Divorce

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Understanding Separate Property in Texas Divorces

Obtaining a divorce involves several moving parts. Beyond dissolving the marriage itself, critical questions must be resolved such as spousal support, child custody and child support where applicable, and of course, the division of marital property. A crucial component of the property division is the determination of separate property as distinct from community (marital) property. Continue reading for a discussion of this vital issue, and contact the Law Office of Maria Lowry for guidance in the property division and other important aspects of your Houston divorce.

The Legal Definition of Separate Property in Texas

Under section 3.001 of the Texas Family Code, separate property refers to the assets and debts owned by either spouse before marriage. Additionally, inheritances and gifts acquired by one spouse during the marriage are separate, as are recoveries for personal injuries received during the marriage, except for any recovery for loss of earning capacity. All property acquired by either spouse during the marriage that does not meet the definition of separate property is community property. It is important to note that the characterization of property in Texas follows the “inception of title” rule, where the nature of the property is determined at the time it is acquired.

The Burden of Proof

In a Texas divorce, the default assumption is that all property possessed by either spouse is community property. Therefore, the spouse claiming that an asset is separate property carries the burden of proof to establish its separate nature. This requires clear and convincing evidence, which is a higher standard of proof than the usual preponderance of evidence standard in civil cases.

Evidence Required to Prove Separate Property

Depending on the asset (or debt) at issue, different forms of evidence might be required to prove that the property is separate. Common forms of evidence include:

  1. Documentary Evidence: This includes deeds, titles, and financial records, which can trace the property back to its origin. For instance, if you acquired a piece of real estate before marriage, the deed showing the date of acquisition can be pivotal.

  2. Inheritance and Gift Documentation: If the property was acquired as a gift or inheritance, documentation such as wills, trust documents, or gift letters can be instrumental in proving separate property status.

  3. Financial Records: Bank statements, stock certificates, and account records can establish the separate nature of assets, especially if they predate the marriage.

  4. Witness Testimony: Sometimes, witnesses, such as family members or friends who have knowledge about the property’s origin, can provide essential testimonial evidence.

Challenges in Proving Separate Property

It’s important to recognize the challenges in proving separate property in Texas, such as:

  • Commingling of Assets: This occurs when separate property is mixed with community property, making it difficult to distinguish the original source. For example, depositing an inheritance into a joint bank account might blur the lines of ownership.

  • Reimbursement Claims: If community funds were used to improve or maintain separate property, the community estate may have a claim for reimbursement, complicating the property division.

  • Appreciation of Separate Property: If separate property has increased in value during the marriage, determining the nature of the appreciation (separate vs. community) can be complex.

Help With Property Division in Divorce in Houston

In light of these complexities, it is advisable for individuals seeking divorce to consult with a knowledgeable family law attorney. A skilled attorney can help navigate the intricacies of Texas property division laws, ensuring that your rights and assets are protected throughout the divorce process. In Houston, call the Law Office of Maria Lowry at 713-850-8859 for assistance.

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