community property presumption in Texas

2022And when “the evidence shows that separate and community property have been so commingled as to defy resegregation and identification, the community-property presumption prevails.” Id. at *6 (citing McKinley, 496 S.W.2d at 543 ).

2015Further, to overcome the community property presumption, the spouse claiming property is separate “must clearly trace the original separate property into the particular assets on hand during the marriage.” Cockerham, 527 S.W.2d at 167 ; see also McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973); Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965); Zagorski, 116 S.W.3d at 316 .

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743 ; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2025Eichhorn, 2022 WL 1591709 , at *3 (citing Barras v. Barras, 396 S.W.3d 154, 164 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)). 36 When a spouse fails to rebut the Family Code’s community-property presumption and the property is characterized as community property, it “is not a divestiture of separate property, but a necessary classification of property as set by the community presumption.” See Pearson, 332 S.W.3d at 364 .

2020See Pearson v. Fillingim, 332 S.W.3d 361, 364 (Tex. 2011) (where husband in a divorce proceeding failed to prove mineral deeds were received as gifts, he failed to overcome the community property presumption).

2007Accordingly, because Matthew’s testimony standing alone is insufficient to trace the separate nature of the funds, McElwee , 911 S.W.2d at 188 , the documentation does not show the origin or source of the funds, the referenced real estate transactions were not independently documented and community funds were admittedly deposited into the account, the evidence is insufficient to overcome the community property presumption by clear and convincing evidence.

2003Accordingly, because Matthew’s testimony standing alone is insufficient to trace the separate nature of the funds, McElwee , 911 S.W.2d at 188 , the documentation does not show the origin or source of the funds, the referenced real estate transactions were not independently documented and community funds were admittedly deposited into the account, the evidence is insufficient to overcome the community property presumption by clear and convincing evidence.

2022“Further, to overcome the community property presumption, the spouse claiming property as separate ‘must clearly trace the original separate property into the particular assets on hand during the marriage.’” Id. (quoting Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975)).

2021CODE § 3.003(a) (2006); Cockerham, 527 S.W.2d at 171 (“Characterization of the debts as community liabilities is only one aspect of the circumstances to be considered in determining whether the debts are joint.”); Farish v. Farish, 982 S.W.2d 623, 629 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (wife did not rebut the community-property presumption that debt and its proceeds belonged to community estate).

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743 ; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2023See, e.g., Tarver v. Tarver, 394 S.W.2d 780 , 782–83 (Tex. 1965) (discussing community-property presumption in context of divorcing Texas residents); Mason v. Crump, 254 S.W.2d 831, 832 (Tex. App.—Fort Worth 1953, writ ref’d n.r.e.) (discussing community-property presumption related to purchase and ownership of property by Texas resident); Rippy, 49 S.W.2d at 3 Because the community-property presumption does not apply, we do not reach the Courtney Borden Heirs’ remaining arguments premised on its application—i.e., whether the Illinois separation agreement reflected any intent for Courtney to g

2015Further, to overcome the community property presumption, the spouse claiming property is separate “must clearly trace the original separate property into the particular assets on hand during the marriage.” Cockerham, 527 S.W.2d at 167 ; see also McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973); Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965); Zagorski, 116 S.W.3d at 316 .

2022“Further, to overcome the community property presumption, the spouse claiming property as separate ‘must clearly trace the original separate property into the particular assets on hand during the marriage.’” Id. (quoting Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975)).

2020“Further, to overcome the community property presumption, the spouse claiming property is separate ‘must clearly trace the original separate property into the particular assets on hand during the marriage.’” Id. (quoting Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975)).

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743 ; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743 ; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2022See McKinley v. McKinley, 496 S.W.2d 540 , 543–44 (Tex. 1973); Goyal, 2021 WL 2149628 , at *6; Bahr v. Kohr, 980 S.W.2d 723 , 728–30 (Tex. App.—San Antonio 1998, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

2012See Bahr, 980 S.W.2d at 728–30 (noting that mere testimony concerning the nature of separate property is not sufficient to overcome the community property presumption).

2025She argues he failed to present clear and convincing evidence rebutting the community property presumption for these shares. 3 See Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—Dallas 2012, no pet.). 5 Thus, even if the trial court erred about dissolution, she claims it correctly found the community owned an undivided one-half share of the stock.

2022“Mere testimony that property was purchased with separate property funds, without tracing the funds, is generally insufficient to rebut the community property presumption.” Id.

2023“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard.” Id.

2022See In re Marriage of Nash, 644 S.W.3d at 697; Viera v. Viera, 331 S.W.3d 195, 208 (Tex. App.—El Paso 2011, no pet.); Bush, 336 S.W.3d at 743 ; Boyd, 131 S.W.3d at 615 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.— Houston [14th Dist.] 2002, no pet.); but see Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) (“The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. . . .

2023See Sherman, 760 S.W.2d at 242 ; Robles, 965 S.W.2d at 615 .

2021See Robles, 965 S.W.2d at 614 .

2022“Such a ‘separate property recital’ negates the community-property presumption and creates in its place a [generally] rebuttable presumption of separate property.” Id. (quoting In re Marriage of Moncey, 404 S.W.3d at 712–13; Magness v. Magness, 241 S.W.3d 910 , 912–13 (Tex. App.—Dallas 2007, pet. denied); Roberts, 999 S.W.2d at 432 ; Kyles v. Kyles, 832 S.W.2d 194, 196 (Tex. App.—Beaumont 1992, no writ)).

2018See In re Marriage of Moncey, 404 S.W.3d 701, 712-13 (Tex. App.—Texarkana 2013, no pet.) (explaining that a separate property recital in an instrument displaces the community property presumption and becomes prima facie evidence that the property is separate property and that the spouse contending the property is community property then has the burden to rebut the separate property presumption); Sanders v. Sanders, No. 02-08-00201-CV, 2010 WL 4056196 , at *16 (Tex. App.—Fort Worth 2010, no pet.) (same); Kyles v. Kyles, 832 S.W.2d 194, 196 (Tex. App.—Beaumont 1992, no pet.) (same); see also Car

2024See McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973); Rivera v. Hernandez, 441 S.W.3d 413, 423 (Tex. App.—El Paso 2014, pet. denied) (noting that party may plead that brokerage account is separate property, “but income earned and dividends paid—if not clearly traced—will result in characterization of the account as community property due to commingling”).

2024“Characterization of property” as separate or community property “is determined by the time and circumstances of its acquisition.” Rivera v. Hernandez, 441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied) (citing Leighton v. Leighton, 921 S.W.2d 365, 367 (Tex. App.—Houston [1st Dist.] 1996, no writ)).

2020Pace, 160 S.W.3d at 714 ; Holloway v. Holloway, 671 S.W.2d 51, 56 (Tex. App.— –15– Dallas 1983, writ dism’d); Newland v. Newland, 529 S.W.2d 105 , 107–08 (Tex. Civ.

2012No further testimony was elicited relating to tracing the TCU tickets or the Krugerrands. 9 character of husband’s accounts or to rebut the presumed community-property character of the account); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex.App.--Houston [14th Dist.] 2002, no pet.)(in the absence of deposit slips and bank records tracing the source of the funds, husband’s testimony was insufficient to overcome the community property presumption); compare Zagorski v. Zagorski, 116 S.W.3d 309, 316-17 (Tex.App.--Houston [14th Dist.] 2003, pet. denied)(op. on reh’g)(husband called three witnesses who

2018This court has explained that “[t]o overcome the community property presumption, the spouse claiming certain property as separate has the burden to trace and clearly identify the property claimed to be separate.” Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.—San Antonio 2006, no pet.).

2018“And, as a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community property presumption.” Id.

2004Such conjecture does not constitute sufficient evidence to sustain appellant’s burden of tracing to overcome the community property presumption.” Latham , 560 S.W.2d at 485 (emphasis supplied); see McKinley v. McKinley , 496 S.W.2d 540, 543-44 (Tex. 1973).

2004Such conjecture does not constitute sufficient evidence to sustain appellant’s burden of tracing to overcome the community property presumption.” Latham, 560 S.W.2d at 485 (emphasis supplied); see McKinley v. McKinley, 496 S.W.2d 540, 543-44 (Tex.1973).

2015Rather, the party asserting separate ownership must actually “trace the assets on hand during the marriage back to property that, because of its times and manner of acquisition, is separate in character.” Irvin, 139 S.W.3d at 708 . “[M]ere testimony that property was purchased with separate funds” without actually tracing the funds “is insufficient to rebut the community property presumption.” Richardson, 424 S.W.3d at 698 ; Irvin, 139 S.W.3d at 708 .

2015Rather, the party asserting separate ownership must actually “trace the assets on hand during the marriage back to property that, because of its times and manner of acquisition, is separate in character.” Irvin, 139 S.W.3d at 708 . “[M]ere testimony that property was purchased with separate funds” without actually tracing the funds “is insufficient to rebut the community property presumption.” Richardson, 424 S.W.3d at 698 ; Irvin, 139 S.W.3d at 708 .

2015Id. at 320; see McKinley v. McKinley, 496 S.W.2d 540 (Tex. 1973); Hill v. Hill, 971 S.W.2d 153 (Tex. App.—Amarillo 1998, no pet.); Welder v. Welder, 794 S.W.2d 420 (Tex. App.—Corpus Christi 1990, no writ).

2005See Hanau, 730 S.W.2d at 667; Welder v. Welder, 794 S.W.2d 420, 425 (Tex.App.-Corpus Christi 1990, no writ).

2004David also cites this court’s decision in Faram v. Gervitz-Faram to support his contention that a spouse’s uncorroborated, uncontroverted testimony constitutes clear and convincing evidence rebutting the community property presumption. 895 S.W.2d 839, 843 (Tex. App.—Fort Worth 1995, no writ).

2004David also cites this court’s decision in Faram v. Gervitz-Faram to support his contention that a spouse’s uncorroborated, uncontroverted testimony constitutes clear and convincing evidence rebutting the community property presumption. 895 S.W.2d 839, 843 (Tex.App.-Fort Worth 1995, no writ).

2024See Graves, 329 S.W.3d at 139 ; accord Vasquez, 292 S.W.3d at 85-86 (“Maria’s testimony was limited to the mere fact that she had signed the final decree concerning the division of marital property, and she thought it was fair and equitable.

2020See Graves v. Tomlinson, 329 S.W.3d 128, 140 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (explaining that testimony unsupported by documentary evidence does not meet the clear and convincing standard and does not overcome the community property presumption).

2022“Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property.” Id. (quoting Zagorski, 116 S.W.3d at 316 ; In re Marriage of Parker, 997 S.W.2d 833, 837 (Tex. App.—Texarkana 1999, pet. denied)).

2020“Tracing involves establishing the separate origin 9 of the property through evidence showing the time and means by which the spouse originally obtained possession of the property.” Id. (quoting Zagorski, 116 S.W.3d at 316 ; In re Marriage of Parker, 997 S.W.2d 833, 837 (Tex. App.—Texarkana 1999, pet. denied)).

2023“Although we begin with a community property presumption, a presumption of separate property arises where . . . the instrument of conveyance contains a separate property recital.” In re Marriage of Moncey, 404 S.W.3d 701, 712 (Tex. App.—Texarkana 2013, no pet.) (cleaned up).

2022The deed to the Loop and 59 Tract named only Michael and provided that the tract was conveyed to him, “a married man, as his sole and separate property and not joined in . . . by his spouse as [the] property constitute[d] no part of his homestead.” “Although we begin with a community property presumption, ‘a presumption of separate property arises where the instrument of conveyance contains a separate property recital.’” Cardenas v. Cardenas, No. 13-16-00064-CV, 2017 WL 1089683 , at *2 (Tex. App.—Corpus Christi Mar. 23, 2017, no pet.) (mem. op.) (quoting In re Marriage of Moncey, 404 S.W.3d 70

2025Holloway v. Holloway, 671 S.W.2d 51, 56 (Tex. App.—Dallas 1983, writ dism’d). 35 But testimony that property was purchased with separate-property funds, without any tracing of the funds from their inception to the relevant purchase, is on its own insufficient to rebut the community-property presumption.

2020Pace, 160 S.W.3d at 714 ; Holloway v. Holloway, 671 S.W.2d 51, 56 (Tex. App.— –15– Dallas 1983, writ dism’d); Newland v. Newland, 529 S.W.2d 105 , 107–08 (Tex. Civ.

2022The deed to the Loop and 59 Tract named only Michael and provided that the tract was conveyed to him, “a married man, as his sole and separate property and not joined in . . . by his spouse as [the] property constitute[d] no part of his homestead.” “Although we begin with a community property presumption, ‘a presumption of separate property arises where the instrument of conveyance contains a separate property recital.’” Cardenas v. Cardenas, No. 13-16-00064-CV, 2017 WL 1089683 , at *2 (Tex. App.—Corpus Christi Mar. 23, 2017, no pet.) (mem. op.) (quoting In re Marriage of Moncey, 404 S.W.3d 70

2022“Such a ‘separate property recital’ negates the community-property presumption and creates in its place a [generally] rebuttable presumption of separate property.” Id. (quoting In re Marriage of Moncey, 404 S.W.3d at 712–13; Magness v. Magness, 241 S.W.3d 910 , 912–13 (Tex. App.—Dallas 2007, pet. denied); Roberts, 999 S.W.2d at 432 ; Kyles v. Kyles, 832 S.W.2d 194, 196 (Tex. App.—Beaumont 1992, no writ)).

2020Chavez v. Chavez, 269 S.W.3d 763, 767 (Tex. App.—Dallas 2008, no pet.). “‘Clear and convincing evidence’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” TEX.

2020Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—Dallas 2012, no pet.); Chavez v. Chavez, 269 S.W.3d 763, 767 (Tex. App.—Dallas 2008, no pet.); Boyd, 131 S.W.3d at 612 .