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 propertySeparate Property is:

(1)  property owned by a spouse before marriage;

(2)  property acquired by a spouse through gift, devise, or descent; and

(3)  the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. 

The Community Property Presumption Must Be Overcome

In a divorce, it is presumed by the judge that all property is community property.  The spouse claiming to have separate property must prove that the property is his or her separate property by clear and convincing evidence.  Tex. Fam. Code. § 3.003.

In a typical civil lawsuit, litigants must prove their case by a “preponderance of the evidence.”  This means that it is more likely than not that the litigant’s version of the facts is true.  To prove separate property however, a spouse will have to go beyond this standard and show “clear and convincing” evidence.  The clear-and-convincing standard as been described as a “firm belief or conviction.”  Stavinoha v. Stavinoha, 126 S.W.3d 604, 608 (Tex. App.—Houston 14th Dist. 2004, no pet.) You can also think of this as a "high likelihood for truth" standard. 

The type of evidence needed to prove separate property could range from a title to a house showing that the house was purchased before the marriage, to testimony from a parent testifying that certain funds were a gift to his/her child, to a last will and testiment showing that property was inherited.  Note that in general, testimony alone is not enough to demonstrate that a spouse owns separate property.  In other words, the testimony will need to be supported by some form of documentation to back up that person's claims.  Often, when separate property has been mixed with other community property or if separate property has “mutated,” the spouse claiming to have separate property will need to hire a forensic CPA to prove his/her separate property.

In short, it is a high burden to be able to prove separate property and if not done properly, the spouse claiming separate property could easily lose the claim if it is not presented adequately.  It is important to hire a lawyer who has experience in dealing with both simple and complex separate property issues to make sure the claim is protected.

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