Each state has its own provision for dividing property at divorce. Many divide only property acquired during the marriage; some states include property that a spouse owned before a marriage or received as a gift during the marriage. If you and your spouse are unable to agree on who gets what, the court will divide the property for you.
When you are going through a divorce, you will need to list marital property and separate property. Some property can have a mixed character. Determining whether property is community property or separate property will be very important to your case. In Texas, marital estates are described as follows:
Section 3.001 of the Texas Family Code states:
A spouse’s separate property consists of:
the property owned or claimed by the spouse before marriage;
- the property acquired by the spouse during marriage by gift, devise, or descent; and
- the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
- Section 3.002 of the Texas Family Code states:
Community property consists of the property, other than separate property, acquired by either spouse during the marriage.
Section 3.003 of the Texas Family Code states:
- Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.
- The degree of proof necessary to establish that property is separate property is clear and convincing evidence.
Please make a list of all separate and community property on the Inventory and Appraisement sheet provided by our office. Remember, if you are making a claim that property is separate property, the burden is placed firmly on your shoulders to prove the separate nature of the property. Proof may consist of a deed, a bill of sale, a cancelled check, a receipt or other documentary proof or testimony that may aid the court to determining whether property is separate or community. The burden of proof to establish that property is separate property is “clear and convincing evidence.” These documents showing that an asset is separate property, such as an account statement for every month since date of marriage, must be produced to the other side before a settlement conference and at least sixty days before trial, sometimes earlier.