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Community Property Presumption: How It Can Work For or Against You
June 6, 2016

Photograph of a piggy bank, paper cut out of a family of four and a house with a key hanging off the chimneyTexas is a community property state, which means a married person's property is either separate property or community property. Basically, separate property is any property owned or claimed before marriage. Separate property also includes property inherited or received as a gift during marriage. Finally, separate property also includes any recovery for personal injuries sustained during marriage, excluding recovery for loss of earning capacity. Community property is any property acquired during marriage that is not separate property. Regardless of which spouse purchased a community property asset, the community property asset belongs to both spouses. During a divorce, courts can divide a couple's community property in any manner the court deems just and right. However, courts generally cannot divide a married person's separate property during divorce.

During a divorce, all property the spouses currently own is presumed to be community property. This is known as the community property presumption, and it has a significant impact on your divorce case. In court, a presumption means the court assumes a fact to be true and it will be the responsibility of the parties to prove otherwise. During a divorce, the community property presumption can be a powerful ally or a significant hurdle to leap over.

For the spouse who owns some or mostly separate property assets, the community property presumption means more preparation and work will be necessary. For example, if you came into your marriage with significant cash savings in your bank account, then it will be your responsibility in court to trace every dollar of that money from the day before your marriage to now using bank statements. If you can't, then you will not have overcome the community property presumption and that money will be subject to division during divorce. For some assets, overcoming the community property presumption only requires finding one or two documents. For real estate, you simply need the deed that shows the property was purchased before marriage or was given as a gift or inheritance. For a vehicle, you simply need the title that shows the vehicle was purchased before marriage or given as a gift or inheritance. One of the more difficult items to prove as separate property is jewelry. Jewelry is often given as a gift. If you received jewelry as a gift, it is your separate property but you will have to prove that the giver intended it as a gift to you. That may take witnesses who may or may not live nearby.

Each asset has its own type of proof necessary to establish its nature as separate property, and the cost of obtaining and presenting that proof can vary greatly. Therefore, for the spouse who has separate property, their main consideration should be comparing the cost of proving their assets are separate property versus the value of the separate property itself. Sometimes, it might be cheaper to split the separate property 50/50 versus proving the property is separate property and getting 100% of it.

As for the person married to someone who has some or mostly separate property, the community property presumption is a strong ally. If your spouse doesn't have the evidence to prove their assets are their separate property, then the court should consider those assets community property and you will have the right to a share of those assets. In a contested divorce case, the spouse married to someone with significant separate property assets should always demand and seek reliable and thorough proof that the assets are in fact separate property. If the proof isn't there, then do not concede that the assets are anything but community property.

If you or your spouse have significant separate property and you need assistance with a divorce, contact Sugar Land divorce attorney Chikeersha Puvvada at 832-317-6705 or online today to schedule a free 30 minute consultation.

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