Division of Property in Divorce Community vs Separate Property

Aside from the child custody issues, the division of property is one of the most contentious aspects of a divorce. It may seem obvious to a man who had a retirement plan at his job when he began his marriage that his retirement plan belongs to him. But if his soon-to-be ex-wife has decided she is entitled to some of it because she feels she has contributed to it through her labor as wife during the marriage, the man may have a fight on his hands. Most people do not get married thinking they will get divorced so little thought may be given to what belongs to them when it comes to some items. A spouse may assume they “own” the car they drive. But if the car was bought after marriage, or the payments are being made out of a joint checking account, this car is at least partially, and probably all, community property. Texas courts presume that all marital property, items purchased during the marriage, are community property. In fact, Texas family law has guidelines as to what is considered separate and community property. Property is considered separate if it is purchased before the couple married. Property is considered separate if it is a gift or “devise or descent,” which refers to gifts that may come from an inheritance or in another way from family. Personal injury awards unless the award is for the loss of earning capacity during the time the spouses were married. But things are not always clear, as noted in the example above. What does the court require to prove that property is separate? The burden of proof is “clear and convincing evidence,” or what I paraphrase as “well, that seems obvious.” If the man we discussed above can prove he began his retirement plan prior to marriage, it will be obvious that the plan amounts generated prior to marriage are his. For the soon-to-be ex-wife to show she is entitled to the portion generated after the marriage, she need do nothing, since the community property presumption works in her favor at that point. The very document that shows the date of marriage in order to protect the pre-marriage amounts works in the opposite manner to show, through the presumption, that those post-marriage amounts are community property. On the other hand, even if it seems obvious that the property is separate, if the other spouse makes a claim evidence must be presented. If you are talking about retirement assets, this evidence could be bank records or employment documents if the retirement plan is through an employer. Deeds, bills of sale and other financial documents must be shown for properties such as homes or cars. Even then, the matter isn’t necessarily resolved as when a separate property item is bought or obtained before a marriage, but then improvements or payments are made towards that item after the marriage using community funds, then a reimbursement issue arises. But that, the issue of reimbursement, is meat enough for another article, or series, of its own. Even the most amicable divorces property division can keep the case in court for months. Be prepared to defend any separate property claims with the right documentation.

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