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Separate Property in Texas Divorce Includes Property Claimed by One Spouse Before Marriage

In a Texas divorce, there is a presumption that property possessed by either spouse during the marriage or at the time of the divorce is community property, unless there is clear and convincing evidence otherwise.  Separate property is property that is owned or claimed by one spouse prior to the marriage.

A wife recently challenged a court’s finding that certain property, the couple’s residence, was the husband’s separate property.  The property was conveyed to the couple from the husband’s son and daughter-in-law by warranty deed.  The husband and wife both testified the conveyance was a trade of real property and there was no additional consideration given.  The husband testified he traded a tract of land he owned before the marriage.  The wife argued, however, that the husband did not establish that he owned the tract prior to the marriage.

If property is acquired in exchange for separate property, the acquired property also becomes separate property. Thus, if the husband established that the tract was his separate property, then the residence would also be his separate property.

The husband did not have a deed or other documentation that showed he owned the tract.  However, he testified that he bought the tract from his brother several years before the marriage.  When the brother died, he still had not transferred the title to the husband, though the husband paid the property taxes for several years. He and his brother’s widow both understood that the property was owned by the husband.  The widow conveyed the property directly to the husband’s son at the time of the trade.

The appeals court noted that separate property is not limited to property owned by the spouse prior to the marriage, but also includes property claimed by the spouse prior to the marriage.  Tex. Fam. Code Ann. § 3.001.  The evidence showed the husband had claimed the property before the marriage.

Additionally, the wife testified that the residence was acquired in a trade with the husband’s son.  She testified that, to her knowledge, no money was exchanged and there was only a direct trade.  The wife was asked whether the husband had 20 acres of land before the marriage, and she responded, “Correct.”  She was then asked if half that acreage and the improvements on it were traded for the residence, and she responded, “Yes.”

The appeals court found the wife had admitted the husband had the tract before the marriage, and therefore could not argue on appeal that he had not established that he had the tract prior to the marriage.  There was uncontroverted evidence that the tract was traded for the residence without any additional consideration.  The appeals court found there was clear and convincing evidence that the residence was traceable to the husband’s separate property, and therefore found no abuse of discretion in the trial court’s finding that the residence was the husband’s separate property.

This case shows that deed or title is not necessarily required to show that property is separate.  Although ideally people transfer title or deed to ensure proper documentation of a sale or conveyance, sometimes deals between friends or family members are not formalized.  This case shows that such arrangements do not necessarily prevent a spouse from claim property as separate.  If you are anticipating a divorce, an experienced Texas divorce attorney can help you protect your assets.  Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.

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