Burden of proof – Clear and convincing evidence – In a continuation of the “yours versus mine” community-property debate, I am going to spend this blog talking about the burden of proof spouses have in establishing separate ownership of property.
Remember that the Texas Family Code presumes all property possessed by either spouse during or upon dissolution of a marriage – by dissolution, I mean divorce – is jointly owned and will be divided equitably unless proven otherwise. To overcome this presumption, a party must have “clear and convincing” evidence to prove that the property is something other than community property by showing the time and/or manner in which the property was acquired..
But what is clear and convincing evidence?
Generally, to establish a fact by clear and convincing evidence the proponent of the evidence will need to use both testimonial and documentary evidence.
Examples of clear and convincing testimony:
- Expert Testimony – This can come from any qualified person who, because of their expert knowledge in a particular field, can be called upon to establish the character (community, mixed, or separate) of property. A perfect example is a certified public accountant. A CPA can use several methods, including tracing deposits and withdrawals from a bank account that has comingled funds.
- Lay Testimony – While a spouse is competent to testify about the character of their presumed separate property, that spouse is also considered what is called an interested witness. Generally, a spouse’s testimony will be insufficient to constitute clear and convincing evidence because they have a personal stake in the court’s decision. Therefore, testimony of corroborating witness to confirm the spouse’s testimony could potentially add more weight to that spouse’s argument – especially if the testimony is clear, direct, positive and free from inaccuracies.
The other side of the coin in showing clear and convincing evidence is documentation, and it is perhaps the biggest piece of the argument. In most cases, a spouse will need to present documentation even when they have expert and lay testimony to rebut the community-property presumption.
The most important documentation is that which establishes the time and manner in which the property was acquired and any later sales or exchanges of the property. Here are a few simplified examples:
- To prove the character of proceeds in a joint bank account, a spouse should provide documentation such as the date the account was opened, its beginning balance, and any debits and credits to the account.
- To prove a property was purchased with inheritance money, a spouse should provide a copy of the will showing the inheritance, copies of checks/statements that show where the money went until it was used to purchase the property.
- To prove the character of ownership interest in a company, a spouse could provide a dated check, stock certificate, and or shareholder agreement, and/or a dated promissory note.
This blog was merely meant to act as a digestible overview. Please refer back to our previous blogs, and if you have questions, please contact Nelson Law Group, PC. We will be glad to help you.
