Tracing Property in Texas without An Expert

Texas is a community property state. In essence, this means that any property owned by spouses at the time of divorce is presumed to be community property to be considered for a just and right division between the spouses. “Community property consists of the property, other than separate property, acquired by either spouse during the marriage.” Tex Fam Code 3.002.

Separate property is defined as 1. Property owned or claimed by the spouse before the marriage, 2. Property acquired by the spouse during the marriage by gift, devise, or descent, and 3. The recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage. Tex Fam Code 3.001.

If a spouse wants to a claim a specific piece of property as their “separate property” and thus not divisible at divorce, their attorney will need to trace and prove the property is separate and 100% theirs.

When tracing, one must use the principle of “inception of title” rule. Inception of title rules states that the a party first has a right of claim to the property when title is vested. Smith v. Smith, 22 SW3d 140, 145. So the question that needs to be answered is: when was the asset purchased and how can you prove it?

Of course, receipts, bill of purchases, etc. are evidentiary proof of the date of when the asset was purchased and by whom. If the property was purchased before the marriage, then it is separate property. Or if one introduces a will, that clearly states that the spouse inherits X property then that property is separate property.

There are also situations where a spouse takes their separate property and mutates it into something else- this is trickier. Is it too co-mingled and thus community property or is still separate property?

Mutations of separate property transpire as follows: Spouse A inherits House then sells House. Spouse A puts proceeds in a bank account in Spouse A’s name only. Spouse A then purchases a Boat with the proceeds. The Boat would still be Spouse A’s separate property if properly traced. Evidentiary documents in this case would be the Will, bank statements, receipt and/or bill of purchase.

Obviously there are different ways and other documents are reasonable depending on the piece of property in question. Speaking to an attorney can provide you more insight on your particular situation.

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