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Specialty tag(s): Characterization of Separate and Community Property, Property Division

How Do You Prove Your Separate Property During a Divorce Proceeding in Texas?

Clint Westhoff | January 28, 2022

How do I prove my separate property?

During the divorce process, proving your separate property can be straightforward with the right evidence. Examples of how to prove your separate property during divorce are going to differ based on the type of property involved, but there are going to be two principles to keep in mind regardless of what kind of property you’re dealing with.

The first is that you always have to be the one to prove something as your separate property. And the second is that you’re always going to have to prove what’s your separate property with clear and convincing evidence. So, one example is real estate that you own before marriage. Anything that you own before marriage is going to be your separate property. To prove a piece of real estate as your separate property, all you will need is a deed that predates your marriage and that will be enough to can clearly and convincingly prove that that is your separate property.

Another example is an investment account that, for example, you put an inheritance in during the marriage. You’re going to have to prove that the money came from an inheritance, through evidence like a last will and testament or a trust. And you’re also going to need a transfer document that shows that that’s where the money came from, into your investment account. But you’re also going to need every single investment account statement from when you established it to when you’re trying to prove it’s your separate property because interest in dividends on that inheritance are community property. And without every single account statement for that account, you’re not going to be able to distinguish between the inheritance and what was earned on the inheritance, so you have to have something that shows where the money came from, and what happened to it during the entire time that you have that investment account.

What if I have gaps in my proof?

If you have gaps in your proof, if you’re missing some of your account statements, the entire account might be determined to be community property and you won’t get credit for any of your separate property.

An example that’s a little more complicated is a qualified retirement account like a 401k. Let’s say you have a 401k that predates your marriage, but you’ll want to have is an account statement as close to the date of your marriage as you can possibly get and that establishes your starting point. After that, you’re going to need, just like an investment account, every single account statement up to the date that you’re trying to prove it to your separate property because you have to show what was done with the dividends and interest and income that was in the account. With a qualified retirement account, a lot of that is not going to be shown on the statements that you received during your marriage. So what happened to the interest in the dividends, you may have to go back to the financial institution and get additional documentation in addition to the account statements that you received during marriage. Some financial institutions actually don’t even keep that information, so if you can’t get it, all you’re going to be able to prove as your separate property is what you had on the date that you were married.

Keep good records.

There is no such thing when you’re trying to prove something as your separate property is having too many records. But often people don’t have enough records and so they lose their separate property. My other two pieces of advice are one: talk to a family law lawyer who knows how to prove something as separate property. And number two: consider entering into a marital property agreement because all of the complexity that I talked about today can be changed by agreement and simplified by the parties.

If you have concerns about proving separate property in divorce, please contact Clint Westhoff at 214-473-9696.