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Community Property Presumption In Texas

weddingIn Texas, all property possessed by either spouse at the time of divorce is presumed to be community property under Texas Family Code § 3.003. A recent appellate case arose out of the divorce of a Texas couple who had been married in Mexico in 1999. In Mexico, they got their civil marriage application, which required them to choose between two marriage property systems, separate property or community property, in order to regulate ownership of their items of property. They chose to have separate property.

In 2015, the wife sued for divorce. She asked for the community property to be divided disproportionately. The husband counterclaimed and stated that he and his wife had to have separate property. He attached a facsimile of the couple’s marriage certificate that included the agreement to have separate property during the marriage, but the certificate wasn’t signed.

At trial, an expert testified for the husband and provided the opinion that in Mexico, a marriage application is treated as a prenuptial agreement. The husband testified that the couple signed the application, but the wife testified she didn’t remember signing the application. She claimed only the husband handled the paperwork, and she didn’t even remember talking about choosing a property regime before the wedding.

The trial court granted the divorce. It found that the parties had chosen to treat their marital property as separate property, but the husband had failed to defeat the community presumption under Texas law. He hadn’t shown any tracing of the source of funds that would permit him to take his assets as separate property. The court identified both community and separate property assets and divided them.

The husband appealed. He argued that it was a mistake for the trial court not to admit his unsigned marriage certificate. The trial court had sustained the wife’s objection to the certificate on the ground that it was not a certified copy. The appellate court explained that usually an original writing must be submitted to prove the content of the writing under Texas Rules of Evidence 1002. Duplicates are admissible, however, unless there is a question about their authenticity or if the original isn’t actually in Texas.

The husband argued that the certificate proved there was a premarital agreement that the court should enforce. The appellate court explained that the trial court had found that the parties chose to have separate property based on testimony. The husband hadn’t shown that excluding the certificate likely resulted in an inappropriate judgment.

The appellate court also explained that the property division had to be manifestly unfair to be considered an abuse of the trial court’s discretion. In Texas, the marital estate needs to be divided equitably but not necessarily equally. The husband complained about the property division, especially of the financial and retirement accounts, which he believed were his separate property. He argued that the trial court had made a mistake in finding he hadn’t properly traced the separate property and that since the couple had married in Mexico and chosen to have separate property, the presumption in favor of community property didn’t apply.

The court found that even with expert testimony added, the certificate didn’t meet the requirements of a valid and enforceable premarital agreement under Texas law. There was no case law presented to show that the property should be separate because the couple married in Mexico. In order to overcome the community presumption in Texas, a party needs to present clear and convincing evidence that specific property is separate. This includes tracing the origins of assets and clearly identifying which pieces of property are separate. Simply providing the husband’s testimony without tracing the funds was insufficient to provide “clear and convincing” evidence. The trial court’s judgment was affirmed.

If your divorce involves matters related to property division, or you need to appeal, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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