"COMMUNITY PROPERTY" vs. "SEPARATE PROPERTY" -- IS IT MINE OR IS IT OURS??????
The “short” answer is as follows:
- It’s presumed community (both of yours) unless you can prove it’s separate,
- If you bought it before the date of marriage, it’s separate, and
- If it was gifted to you or you inherited it, it’s separate.
However, you still have to show up with the paperwork to prove your case!!!! The community property presumption (that it’s always community) can be overcome. But, you have to have your “ducks in a row” and those “ducks” better be reliable documents!
A self-generated computer spreadsheet timeline created by you, while helpful, is not acceptable proof –- unless perhaps your spouse has no attorney!!
Sometimes a great deal of money is paid to forensic accountants to trace a series of transactions to confirm the separate property nature of one of the parties’ assets. This can become very complicated. My purpose here is to simply give you a few basic guidelines:
- Texas follows the “Inception of Title Rule”. Please be accurate when you discuss with your attorney whether you bought the house, for example, before or after the date of marriage. This will save your attorney time. Don’t forget: whatever saves your attorney time saves you money!!!
- Was the house re-financed? If so, that is also important info to pass along!
- Have you lost your documents from the original closing or re-financing? Have you lost your bank statements, canceled checks, etc. showing the separate property money deposited into the community property checking account?
- It can take time to order copies of these things from the bank. Do this as early on in your case as possible. Don’t assume your spouse will admit that the property, account, money or whatever belongs to you alone.
- Please remember that once your spouse talks to an attorney, he or she may develop a severe memory loss about any circumstances surrounding your “inheritance” and what it was spent on!
- The person who is trying to prove that the asset is “separate” has the burden of proof, and that burden is by “clear and convincing evidence.” This means that if there is doubt, the benefit of the doubt will be given to the community!
- Saying it doesn’t make it so!!!! As discussed above, you can tell the Court that something belongs to you alone –- but just because it is possible that it belongs to you alone will not be enough. Bring your proof from the bank, the executed Last Will and Testament, etc. to confirm what you are saying!
- There are complicated accounting theories and rules to govern accounts which contain both separate and community property deposits and withdrawals. Always do a “cost benefit analysis.” Is it worth taking the time and spending the money to prove the asset is “yours alone” -– or would it be cheaper to just “split it” and move on? If you decide that the asset is valuable enough to pursue, it's never too early to start gathering your evidence!
There is very little in life that you can “be sure of.” Don’t count on your spouse to be as reasonable as I have suggested you be regarding this analysis!!!!!!
Instead, expect them to “fight to the death” over every asset! I’m counting on you to stay calm and clear-headed!!!!!