Community property is defined through exclusion as “the property, other than separate property, acquired by either spouse during marriage.” Texas courts presume that all property acquired during a marriage belongs jointly to both spouses. This “community estate” is subject to a “just and right” division by the court, generally as close to 50/50 as possible.
Inception of Title Doctrine
Importantly, community presumption can be rebutted through the inception of title rule. This doctrine clarifies that the character of property is fixed at the time of acquisition. Henry S. Miller Co. v. Evans, 452 S.W.2d 426 (Tex. 1970). Consequently, if a right to property existed prior to marriage, the property in question is considered “separate,” and not subject to division by the court. It is the responsibility of the party claiming separate property to demonstrate (through clear and convincing evidence) ownership prior to their marriage. Alternatively, assets demonstrated to be gifts or inheritances will also be considered separate.
“Comingling” of Community and Separate Property
Unfortunately, parties will often combine assets from their separate and community estates. For example, a spouse may decide to contribute funds from an inheritance toward a down payment on a home. In the event of divorce, this home will be characterized both as community and separate property in proportion to separate and community contributions. Cook v. Cook, 679 S.W.2 581, 583 (Tex. App. – San Antonio 1984, no writ).
How do I Determine the Size of my Community and Separate Estates?
If neither spouse claims separate property, then a community estate will simply consist of the combination of all assets and liabilities. However, for large estates or those involving separate property claims, individuals may need to undergo complex accounting and characterization. Experienced family law attorneys will be familiar with the process of meticulously inventorying large estates. For large separate property claims, counsel may advise hiring a forensic accountant to “trace” the provenance of some assets, ensuring that a judge will not find them to be community property.
Texas Marital Property and Separate Property
In this video, Brian Walters explains how courts view marital property in Texas. He also discusses the three main categories of separate property: prior ownership, gifts, and inheritances.
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Divorce and Property Division for more information