Establishing what is yours, and what is mine – Because Texas is a community-property state, most property acquired during a marriage is considered jointly owned by both spouses and is divided upon divorce, annulment or death.
But as we alluded to in our last blog, establishing ownership of ALL real and personal property from a marriage that is ending is not as straight forward as you might think. The battle over what is yours and what is truly mine in a divorce case is often a big subject and can get quite convoluted. Property can be deemed separate, mixed, or community property depending on the circumstances.
In case you missed my previous blog, here is what I mean by separate, mixed or community property.
Community Property – Defined as property acquired or created during the marriage by either spouse, with each spouse sharing equal ownership. In a divorce, all assets and liabilities identified and characterized as the spouses’ community property must be fairly divided between the spouses.
Separate Property – Property that came before the marriage (i.e. one spouse already owned a house, received an inheritance, or property as a gift from a third party). Because the property was owned individually by one spouse and then brought into the marriage, a court cannot legally split ownership.
Mixed Property – Property is considered mixed when it consists of both separate and community property. For example, when both separate and community funds are used to purchase property – such as a house.
With that said, the Texas Family Code presumes that all property possessed by either spouse during or upon dissolution of marriage is community property. It is important to note that this presumption does not suggest the property is, in fact, owned equally by both spouses. It simply creates a rebuttable presumption that ceases to exist when one spouse introduces sufficient evidence indicating otherwise.
Each spouse has the opportunity to rebut the community-property presumption by supporting clear and convincing evidence to support their claim.
If they do not, the property belongs to the community estate.
Below are the two ways to rebut the community-property presumption:
- Inception of title and tracing – This sounds very technical, but all it means is that a spouse can prove ownership of property based on the time and manner in which they acquired it. If it happened before the marriage, the property is considered separate. If it happened during the marriage, that spouse must also provide proof that it was a gift or part of an inheritance. This proof of ownership would still hold true in the case of land acquired before marriage, even though the spouses built a home on the land and mortgaged the property during marriage.
- Agreement – If there were a contractual agreement between the spouses, such as a premarital agreement, the property would be considered separate.
There is a lot that goes into marital property law. Please refer back to our previous blogs, and watch for more blogs in the coming weeks for more information on this topic and many others. If you have questions, please contact Nelson Law Group, PC. We will be glad to help you.