community presumption in Texas

2024“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. at 697 (citing Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.)). “[C]onclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.” Id. (quoting Marriage of Born, 2009 WL 1010876 , at *5); accord Remley v. Remley, No. 02-07-00044-CV, 2008 WL 4355347 , at *3 (Tex. App.—Fort Worth

2024“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. at 697 (citing Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.)). “[C]onclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.” Id. (quoting Marriage of Born, 2009 WL 1010876 , at *5); accord Remley v. Remley, No. 02-07-00044-CV, 2008 WL 4355347 , at *3 (Tex. App.—Fort Worth

2022To rebut this presumption, the party asserting an item of property is their separate property must prove this assertion by “clear and convincing evidence.” Id. § 3.003(b). “‘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.” Id. § 101.007; see Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.). “[C]onclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption,

2022To rebut this presumption, the party asserting an item of property is their separate property must prove this assertion by “clear and convincing evidence.” Id. § 3.003(b). “‘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.” Id. § 101.007; see Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.). “[C]onclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption,

2023Separate property will retain its character through a series of exchanges so long as the party asserting separate ownership can overcome the community presumption “by tracing the assets on hand during the marriage back to the property that, because of its time and manner of acquisition, is separate in character.” Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.) (citing Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex. 1975)); In re Marriage of Nash, 644 S.W.3d 683 , 696–97 (Tex. App.—Texarkana 2022, no pet.) (citations & quotations omitted) (must trace assets on hand duri

2023“In order to overcome the community presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate.” Id. at *7 (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)); see Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975)).

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. (citing Boyd, 131 S.W.3d at 612 ); see Robles v. Robles, 965 S.W.2d 605, 614 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). “[C]onclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.” In re Marriage of Born, 2009 WL 1010876 , at *5; see Robles, 965 S.W.2d at 614 (“Mere testimony that the pr

2021Wife asserts that “mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.” See, e.g., McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.— Houston [1st Dist.] 1995, writ denied).

2022“Parties claiming certain property as their separate property have the burden of rebutting the presumption of community property.” Pearson, 332 S.W.3d at 363 (citing McKinley v. -5- 04-19-00736-CV McKinley, 496 S.W.2d 540, 543 (Tex. 1973)). “[A]s a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.” Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.) (citing Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.—San Antonio 1998, no pet.)).

2004See Latham , 560 S.W.2d at 485 (stating that conjecture as to the source of funds is insufficient to sustain the burden of tracing); see also McKinley v. McKinley , 496 S.W.2d 540, 544 (Tex. 1973) (stating that the community presumption prevails if surmise or speculation is required to come to a conclusion about a property’s status).

2023“In order to overcome the community presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate.” Id. at *7 (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)); see Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975).

2023“In order to overcome the community presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate.” Id. at *7 (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)); see Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975)).

2024In re Marriage of Nash, 644 S.W.3d 683 , 697 (Tex. App.—Texarkana 2022, no pet.) (“Conclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.”); Irvin v. Parker, 139 S.W.3d 703, 708 (Tex. App.—Fort Worth 2004, no pet.) (“[M]ere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.”); Robles v. Robles, 965 S.W.2d 605, 614 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (same).

2024“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. at 697 (citing Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.)). “[C]onclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.” Id. (quoting Marriage of Born, 2009 WL 1010876 , at *5); accord Remley v. Remley, No. 02-07-00044-CV, 2008 WL 4355347 , at *3 (Tex. App.—Fort Worth

2022“Parties claiming certain property as their separate property have the burden of rebutting the presumption of community property.” Pearson, 332 S.W.3d at 363 (citing McKinley v. -5- 04-19-00736-CV McKinley, 496 S.W.2d 540, 543 (Tex. 1973)). “[A]s a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.” Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.) (citing Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.—San Antonio 1998, no pet.)).

2017See Boyd, 131 S.W.3d at 615-16 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied) (holding husband’s testimony failed to establish certain accounts were separate property because neither his testimony nor the exhibits offered “provid[ed] account numbers, statements of accounts, dates of transfers, amounts transferred in or out, sources of funds or any semblance of asset tracing”); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding husband’s testimony insufficient to overcome the community presumption in the absence of de

2024In re Marriage of Nash, 644 S.W.3d 683 , 697 (Tex. App.—Texarkana 2022, no pet.) (“Conclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.”); Irvin v. Parker, 139 S.W.3d 703, 708 (Tex. App.—Fort Worth 2004, no pet.) (“[M]ere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.”); Robles v. Robles, 965 S.W.2d 605, 614 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (same).

2023In re Marriage of Nash, 644 S.W.3d 683 , 697 (Tex. App.—Texarkana 2022, no pet.) (“Conclusory or uncorroborated testimony that funds are separate property is insufficient to rebut the community presumption, unless there is also evidence that traces the funds.”) (cleaned up); Irvin v. Parker, 139 S.W.3d 703, 708 (Tex. App.—Fort Worth 2004, no pet.) (“[M]ere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.”); Robles v. Robles, 965 S.W.2d 605, 614 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (same

2025See Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding husband’s testimony insufficient to overcome the community presumption in the absence of deposit slips or bank records tracing the source of the funds).

2017See Boyd, 131 S.W.3d at 615-16 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied) (holding husband’s testimony failed to establish certain accounts were separate property because neither his testimony nor the exhibits offered “provid[ed] account numbers, statements of accounts, dates of transfers, amounts transferred in or out, sources of funds or any semblance of asset tracing”); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding husband’s testimony insufficient to overcome the community presumption in the absence of de

2025See id.; see also McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (citing Schmeltz v. Garey, 49 Tex. 49, 60-61 (Tex. 1878)).

2015See McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (citing Schmeltz v. Garey, 49 Tex. 49, 60-61 (Tex. 1878)).

2009Code Ann. § 3.001 (1), (2) (Vernon 2006) (providing that property is a spouse's separate property if it was owned or claimed by the spouse before marriage or if the property was acquired during marriage by "gift, devise, or descent"); see also Mock , 216 S.W.3d at 373 (holding that testimony that assets are separate property without any tracing is insufficient to rebut the community presumption).

2009In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Mock v. Mock, 216 S.W.3d 370, 372 (Tex. App.—Eastland 2006, no pet.). 4 A party seeking to rebut the community presumption must trace the assets on hand during the marriage back to property that is separate in character.

2024“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 Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied). “[C]onclusory or uncorroborated testimony that funds are separate property is 9 insufficient to rebut the community presumption, unless there is also evidence that traces the funds.” In re Marriage of Born, No. 06-08-00066-CV, 2009 WL 1010876 , at *5 (Tex. App.—Texarkana Apr. 16, 2009, no pet.) (mem. op.).

2017See Boyd, 131 S.W.3d at 615-16 ; Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied) (holding husband’s testimony failed to establish certain accounts were separate property because neither his testimony nor the exhibits offered “provid[ed] account numbers, statements of accounts, dates of transfers, amounts transferred in or out, sources of funds or any semblance of asset tracing”); Osorno v. Osorno, 76 S.W.3d 509, 512 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding husband’s testimony insufficient to overcome the community presumption in the absence of de

2015See Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987) (citing Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965)).

2013McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973) (citing Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965)).

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.” Smith v. Smith, 22 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

2021“The only requirement for tracing and the application of the community-out-first presumption is that the party attempting to overcome the community presumption produce clear evidence of the transactions 26 affecting the commingled account.” Id. (quoting Welder v. Welder, 794 S.W.2d 420, 434 (Tex. App.—Corpus Christi–Edinburg 1990, no writ)).

2023“The only requirement for tracing . . . is that the party attempting to overcome the community presumption produce clear evidence of the transactions affecting the commingled account.” In re Marriage of Guerra, No. 13-21- 00377-CV, 2022 WL 16842086 , at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 10, 2022, no pet.) (mem. op. on reh’g) (quoting Welder v. Welder, 794 S.W.2d 420, 434 (Tex. App.—Corpus Christi–Edinburg 1990, no writ)).

2022“The only requirement for tracing . . . is that the party attempting to overcome the community presumption produce clear evidence of the transactions affecting the commingled account.” Welder v. Welder, 794 S.W.2d 420, 434 (Tex. App.—Corpus Christi–Edinburg 1990, no writ).

2010As we noted in Hicks, “[h]ospital rules do not reflect the community standard of medical care.” See Hicks v. Canessa, 825 S.W.2d 542, 544 (Tex. App. – El Paso 1992, no pet.); see also Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 951 (Tex. App. – Fort Worth 1997, writ denied) (hospital’s policies and bylaws alone do not determine the governing standard of care).

2010As we noted in Hicks, “[hjospital rules do not reflect the community standard of medical care.” See Hicks v. Canessa, 825 S.W.2d 542, 544 (Tex.App.-El Paso 1992, no pet.); see also Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 951 (Tex.App.-Fort Worth 1997, writ denied) (hospital’s policies and bylaws alone do not determine the governing standard of care).

2010As we noted in Hicks, “[h]ospital rules do not reflect the community standard of medical care.” See Hicks v. Canessa, 825 S.W.2d 542, 544 (Tex. App. – El Paso 1992, no pet.); see also Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 951 (Tex. App. – Fort Worth 1997, writ denied) (hospital’s policies and bylaws alone do not determine the governing standard of care).

2010As we noted in Hicks, “[hjospital rules do not reflect the community standard of medical care.” See Hicks v. Canessa, 825 S.W.2d 542, 544 (Tex.App.-El Paso 1992, no pet.); see also Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 951 (Tex.App.-Fort Worth 1997, writ denied) (hospital’s policies and bylaws alone do not determine the governing standard of care).

2008See Miller, 413 U.S. at 32-33 , 93 S.Ct. at 2619-20 ; see also Berg v. State, 599 S.W.2d 802, 805 (Tex.Crim.App.1980)(rejecting notion that contemporary community standards could be restricted to the territorial limits of Johnson County, and approving a jury charge submitting the issue under “the contemporary community standards of the State of Texas”).

2008See Miller, 413 U.S. at 32-33 , 93 S.Ct. at 2619-20 ; see also Berg v. State, 599 S.W.2d 802, 805 (Tex.Crim.App. 1980)(rejecting notion that contemporary community standards could be restricted to the territorial limits of Johnson County, and approving a jury charge submitting the issue under “the contemporary community standards of the State of Texas”).

2008See Miller, 413 U.S. at 32-33 , 93 S.Ct. at 2619-20 ; see also Berg v. State, 599 S.W.2d 802, 805 (Tex.Crim.App.1980)(rejecting notion that contemporary community standards could be restricted to the territorial limits of Johnson County, and approving a jury charge submitting the issue under “the contemporary community standards of the State of Texas”).

2008See Miller, 413 U.S. at 32-33 , 93 S.Ct. at 2619-20 ; see also Berg v. State, 599 S.W.2d 802, 805 (Tex.Crim.App.1980)(rejecting notion that contemporary community standards could be restricted to the territorial limits of Johnson County, and approving a jury charge submitting the issue under “the contemporary community standards of the State of Texas”).

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 .

2022“Parties claiming certain property as their separate property have the burden of rebutting the presumption of community property.” Pearson, 332 S.W.3d at 363 (citing McKinley v. -5- 04-19-00736-CV McKinley, 496 S.W.2d 540, 543 (Tex. 1973)). “[A]s a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.” Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.) (citing Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.—San Antonio 1998, no pet.)).

2022Andrews, 652 S.W.2d at 382 (“We therefore hold that the Texas obscenity statute is not unconstitutional because statutory term “patently offensive” is defined in terms of a community standard of decency.

1986Nor can I agree personally with the Andrews holding that “the Texas obscenity statute is not unconstitutional because the statutory term ‘patently offensive’ is defined in terms of a community standard of decency.” Id. at 382 .

2022Id.

2011See Moroch, 174 S.W.3d at 856-57 .

2021See Barras, 396 S.W.3d at 163–64; Graves, 329 S.W.3d at 139 .

2018See, e.g., Warriner, 394 S.W.3d at 248 (citing Viera, 331 S.W.3d at 207 ); see also Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (the clear and convincing evidence standard is generally “not satisfied by testimony that property ... is separate property when that testimony is contradicted or unsupported by documentary evidence tracing the asserted separate nature of the property”); Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (mere testimony that property was purchased with separate property funds, wi

2004See Latham , 560 S.W.2d at 485 (stating that conjecture as to the source of funds is insufficient to sustain the burden of tracing); see also McKinley v. McKinley , 496 S.W.2d 540, 544 (Tex. 1973) (stating that the community presumption prevails if surmise or speculation is required to come to a conclusion about a property’s status).

2004See Latham, 560 S.W.2d at 485 (stating that conjecture as to the source of funds is insufficient to sustain the burden of tracing); see also McKinley v. McKinley, 496 S.W.2d 540, 544 (Tex.1973) (stating that the community presumption prevails if surmise or speculation is required to come to a conclusion about a property’s status).

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 .

2021See Barras, 396 S.W.3d at 163–64; Graves, 329 S.W.3d at 139 .

2022See id. at 344–45.

2014See Sink, 364 S.W.3d at 344 ; Boyd v. Boyd, 131 S.W.3d 605, 616 (Tex. App.—Fort Worth 2004, no pet.).

2021Boyd, 131 S.W.3d at 612 ; McElwee, 911 S.W.2d at 188 ; see Bush, 336 S.W.3d at 743 (“It is well established that, in order to show that property purchased during the marriage is separate property, it is not enough to simply state that the 33 funds used to purchase the property were separate property funds; instead there typically must be some sort of documentary tracing to show that the funds used were separate property.”).

2015See Bush, 336 S.W.3d at 743 (“It is well established that, in order to show that property purchased during the marriage is separate property, it is not enough to simply state that the funds used to purchase the property were separate property funds; instead there typically must be some sort of documentary tracing to show that the funds used were separate property.”); Boyd, 131 S.W.3d at 612 (“Moreover, 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 presumption.”).