How to Keep Your Property from Becoming Community Property

Division of property is often a significant issue for families going through divorce in The Woodlands or Montgomery County. Each spouse wants to keep or obtain the property they believe they are entitled to. Texas is a community property state; however, it is possible to protect your separate property from becoming community property and being partially awarded to your future ex-spouse.

Any property on hand in a marriage is presumed to be community property. In order to rebut this presumption of community property, your Montgomery County Divorce Attorney must trace the property on hand during the marriage back to property that was separate (i.e. before the marriage) and continue up to the end of the marriage. This means the entire period from when you first obtained the property up to the date the divorce petition was filed. If you are successful, you can keep your separate property from becoming community property. If you fail, the Court may award significantly more of your separate property to your ex-spouse than he or she is entitled to.

How do you stop this from happening? Simply testifying and giving your word that property in question was originally separate and according to your recollection remained separate is almost always not accepted by the Court. To be successful, you must establish the separate nature of the property though clear and convincing evidence showing the time and means by which you originally obtained possession of the property. If you can provide that proof, then you have another hurdle to overcome.

Property in the form of bank accounts, retirement accounts, or investment accounts typically generate interest or dividends. During a Texas marriage, these items are considered community property even if the account creating the interest or dividend is entirely separate property. In order to preserve your original separate property during a divorce in Montgomery County, you must trace every item of income, deposits, and withdrawals for the entire period of the marriage to prove to the Court exactly how much of the account is still your separate property and how much is now community property.

This is your burden to prove. If the Court has any doubt about the exact value of separate property versus community property it can resolve the dispute as it sees fit. Speak with a Montgomery County Divorce Attorney today to help protect your rights and property while going through divorce.

For additional answers to common questions in a Montgomery County divorce take a look at our free Guide to Divorce in The Woodlands and Montgomery County.

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richard rosh - May 10, 2011 Reply

Capital gains on separate property REMAINS separate property. Please note error on this page:

http://thewoodlandsdivorce.com/2009/05/25/how-to-keep-your-property-from-becoming-community-property/

    Richard Shea - November 28, 2014 Reply

    I do not see where the above article says capital gains on separate property are community property. It does say interest and dividends on separate property may be community property. Interest and dividends are different than capital gains.

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