Each state mandates its rules for the separation of property during a divorce.
Texas is one of nine states following the community property rule, meaning any property acquired during the marriage is marital property. In application, that does not always result in equal division.
1. Claims to separate property
According to Texas law, separate property includes assets owned by either spouse before the marriage. Assets gifted to or inherited by one spouse during the marriage may also fall under the umbrella of separate property. The same is true of compensation recovered by one spouse for personal injury, with the exception of the loss of earning capacity.
2. Burden of proof
When either spouse wants to claim an asset as separate property, the burden of proving ownership falls on them. To meet the classification of separate property, the spouse claiming the asset must also prove that community funds did not contribute to it. This can sometimes be difficult, especially for couples that share bank accounts.
3. Real Estate
Should one spouse claim a real estate asset as separate property, proving ownership is typically easy. They simply show a title or deed listing them as the sole owner of the property and the date of purchase. As long as the purchase date is prior to the marriage, it will likely be separate property. However, refinancing during the marriage could complicate things.
The court assesses asset division based on the unique circumstances of each case. With proper record keeping, proving ownership of an asset can be simple.