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Can individuals challenge the community property presumption?

| Jul 9, 2021 | Divorce, High-asset Divorce |

Texas is one of a handful of community property states. In simple terms, property accrued by each spouse during the marriage is rebuttably presumed to be community property that is subject to a “fair and just” division by the Court if the couple divorces. Property that they accrue before the marriage remains individual “separate” property unless the asset becomes hopelessly commingled, which means that the Court will then consider the property to be “community” property.

A 50-50 split of marital property sounds fairly simple – each spouse gets half. But it can quickly get complex as the couple starts to divide their community assets.

The presumption

There is a rebuttable presumption that all property accrued during the marriage is community property. However, there are exceptions. A spouse can argue that some of the property is separate or exempt from the marital estate even if there is no applicable prenuptial or post-nuptial agreement.

The burden of proof is on the spouse who claims that the property qualifies as separate property. This will likely involve producing documents and tracing the property through financial or property records that prove that one spouse owned the asset in question prior to the marriage, or received it by gift or inheritance.  The burden of proof is high, and there must be clear and convincing evidence to meet that burden. Some common instances where a spouse would argue for a separate property would be ownership of a home, business, or investment that existed before the parties were married.

The spouse may disagree

Some things are worth fighting for, so it may be worth the time and effort for a spouse to protect what they view as their separate property from division by the Court as part of the community estate. This can be in dispute if the property is a valuable asset, so it is essential that the client work with an experienced, Board-Certified Family Law expert attorney who understands the nuances in the law in determining and proving the character of separate property vs. community property.

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