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How do I prove separate property?

On Behalf of | Oct 29, 2021 | Divorce |

Texas is a community property state, which means you and your spouse have equal ownership over everything the court deems as marital property. This law makes it important for you to identify separate property so you do not have to split it with your spouse when you divorce.

According to the Texas Constitution and Statutes, the court will automatically presume all property you own is marital property unless you can prove otherwise. However, proving something is separate property is not an easy process.

Extent of evidence

You will have to provide the court with evidence that the property is not martial under the law. The court requires clear and convincing evidence to prove your claim. In other words, you need to offer the court something that is undeniable as proof that property is separate and not part of the marital estate.


What can complicate the process is that sometimes separate property becomes in part or whole marital property based on how you treated it during your marriage. For example, a home you owned prior to your marriage that you made into your marital home, will likely be something the court declares as marital property even though it started out as separate property.

Best evidence

The best evidence you can provide is a legal document stating ownership. A deed or title can be the most solid option because it will include the date, which proves when you bought or obtained the item.

Other situations can also help you to prove property as separate. For example, inheritances are not marital property, so if you can show something came to you from an inheritance, then you can show it is separate property. Gifts are also not marital property, so if you have evidence of a gift, that can work, too.

Proving something is separate property is difficult. It can help if you have legal records to show the court.