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.
You will need to make a list of all separate and community property on an Inventory and Appraisement sheet. 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.”