When spouses divorce, there must be a division of their property. There are two types of property that spouses can own: community property and separate property. Simply put, community property is any property that is not separate property. Tex. Fam. Code § 3.002.
Separate Property is:
- property owned by a spouse before marriage;
- property acquired by a spouse through gift, devise, or descent; and
- the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage.
Claiming Separate Property
All parties claiming separate property must demonstrate at least one of four criteria: acquisition before marriage, as a gift, through an inheritance, or as compensation for a personal injury.
Examples of evidence used to prove these criteria may include a title to a house showing acquisition before marriage, testimony that certain funds were presented as a gift, or a last will elaborating upon an inheritance. In general, testimony alone is insufficient to prove separate property and will need to be supported by some form of documentation. Often, when separate and community property becomes mixed, a forensic CPA is needed to conduct thorough “tracing” of relevant assets and accounts.
If you are looking to present separate property in your divorce case, it is vital for you to contact an experienced attorney.