Posted on in Divorce
Divorcing couples in Texas who have been married long enough to hold bank accounts, property, or other assets in common must divide these assets as part of the divorce process. Some states are “equitable division” states, meaning courts divide community property in a way that is fair rather than equal. Texas, however, is a “community property” state, meaning that courts presume that all property acquired during the marriage by either spouse belongs to both spouses equally.
Spouses may own separate property, but to keep this property separate during the divorce process, spouses must prove it is not community property. In this article, we will examine the difference between marital and separate property, and how these categories can influence the way property is handled in your divorce.
Community Property vs. Separate Property
Separate property consists of assets that fall into one or more of the following categories:
Assets that one spouse owned before the marriage began
Assets that were given as a gift or inheritance to one spouse, even during the marriage
Under some circumstances, assets acquired through a personal injury claim, such as a cash settlement
Community property consists of all other assets that either spouse acquired after the marriage began. This includes assets and debts, and can come in the form of salaries, bonuses, vehicles, property, collectibles, and anything else of value.
Keep in mind that property that originally could have been considered separate property can become marital property if it is found to be “commingled.” Commingling occurs when spouses mix together separate and community property. Courts may try to separate community and marital property, but this can be complicated and difficult. Sometimes commingling happens to such an extent that the court will classify the entirety of the separate property as marital property and divide it accordingly.
How Can I Prove Something is My Personal Property?
The standard of evidence for proving property is separately owned is “clear and convincing evidence” and evidence must be provided by the spouse claiming the asset. This is a fairly heightened standard; a verbal claim that one spouse exclusively owned an asset is insufficient if the other spouse disagrees.
A spouse wishing to prove that an asset is his or her property alone must do so using documentation that demonstrates exclusive ownership of the asset. If cash funds have been commingled in a joint bank account, spouses may need to hire a forensic accountant in order to track the inflow and outflow of money from the account to determine how much of the bank account is the spouse’s personal property.
Work with a Plano, Texas Property Division Attorney
Determining what is considered community property and how to divide it in your divorce can be complex and stressful. Fortunately, you do not have to do it alone. At Law Office of Brian Bagley, Attorney Brian Bagley is an experienced Collin County divorce attorney who can help you understand how marital property is handled during divorce. Contact our offices today to schedule your free initial consultation and find out how Attorney Bagley can help you. Call us at (972) 843-7158.