Dividing property during a divorce in Texas can be one of the most complex and emotionally charged parts of the entire process. While many people go into divorce proceedings assuming that what’s “theirs” will remain “theirs,” Texas law doesn’t make it quite so simple. Proving that certain assets should be considered separate property—not subject to division—comes with a heavy burden of proof.
Whether you’re working with a divorce attorney, property division lawyer, or contested divorce attorney, understanding the rules surrounding separate and community property is crucial to protecting your financial future.
Understanding Community vs. Separate Property
Texas is a community property state. This means that, by default, all property acquired during the marriage is presumed to belong to both spouses equally, regardless of whose name is on the title, who earned more, or who “used” the asset more frequently.
However, property acquired before the marriage, or received during the marriage via gift or inheritance, is typically considered separate property. So, if you owned a car before you got married, that car should still be yours after a divorce, right?
In theory, yes. In practice, it’s more complicated.
The Burden of Proof Is on You
The key phrase in Texas family law is this: “He who asserts must prove.” If you are claiming that a specific asset is your separate property, you must provide clear and convincing evidence to support that claim.
This is where the expertise of a seasoned property division mediation attorney or family law attorney becomes essential. Without proper documentation and legal support, even assets you truly own independently can be classified as community property and divided accordingly.
Separate property? The burden of proof is on you.
Tracing Is Often Required
Let’s say you received an inheritance of $50,000 and deposited it into a joint bank account with your spouse. Years later, during your divorce, you claim the remaining $30,000 in that account is still yours.
The court will likely ask: Can you trace the remaining funds directly to the original $50,000? Can you prove that the money wasn’t co-mingled with other marital funds, used for joint expenses, or deposited alongside shared income?
If the answer is unclear, the judge may rule that the funds have been so co-mingled that they are now community property. This is where a family law and litigation attorney can help by gathering financial records, expert testimony, and documentation to support your case.
Common Property Disputes in Divorce
Some of the most common assets people attempt to claim as separate property include:
Real estate purchased before marriage
Inheritances
Family gifts
Business interests
Retirement accounts or stocks acquired before marriage
For each of these, you’ll need clear documentation: deeds, bank statements, wills, appraisals, or tax returns. A contested divorce attorney will know exactly how to gather and present this documentation effectively in court.
Separate Property Can Still Become Community
Another area that trips people up is transmutation—when separate property is intentionally or accidentally converted into community property.
This can happen when:
A property title is changed to include both spouses
Separate funds are used to buy joint assets
Separate property is used in a way that benefits the marriage without a formal agreement
For example, if you inherited a house and later refinanced it under both names, or used community funds to improve it, your spouse may now have a claim to a portion of that property’s value. In such cases, a property division lawyer or family lawyer can help argue for reimbursement, but it’s not guaranteed that the asset will be fully returned to you.
Postnuptial agreements can protect assets—but only if they’re done right.
Postnuptial Agreements: A Useful Tool
One way to proactively address property concerns is through a postnuptial agreement. These agreements, made during the marriage, clearly outline what each spouse considers separate property and how property will be handled in the event of a divorce.
While postnups can be incredibly useful, they must be legally sound and fair. That’s why it’s vital to work with experienced family law and litigation attorneys who understand the latest state requirements for enforceability.
Why You Shouldn’t Go It Alone
Texas family law doesn’t favor those who simply claim ownership—they favor those who prove it. That proof must be detailed, well-organized, and presented strategically. The court doesn’t assume good intentions or vague memory.
Working with a family law attorney or property division lawyer who is familiar with the specific tendencies of family court judges in your area can make a critical difference in your outcome. They know how to prepare financial disclosures, trace funds, and rebut community property presumptions effectively.
When Custody and Property Collide
In many divorces, property division intersects with child custody. Courts may factor in which parent will be the primary conservator when deciding how to divide certain marital assets, especially if children will remain in the family home.
An experienced child custody lawyer in Houston or child visitation attorney may work in tandem with your property division lawyer to develop a strategy that protects both your financial and parental rights.
Tracing funds is key to keeping what’s yours in divorce
Why It’s Easier to Lose Than to Win
In family court, the presumption is against you when claiming separate property. You are essentially trying to overcome what the law assumes is true: that all property acquired during the marriage is shared. That’s a steep hill to climb, especially without skilled legal representation.
Even if you believe your case is simple—perhaps you’re going through a common law divorce or an uncontested separation—if any significant assets are involved, the burden of proof still applies. You may not be in a courtroom fight, but you’ll still need a solid legal strategy.
Final Thought: Don’t Wait to Build Your Case
If you’re heading into divorce or separation, start preparing now. Gather documentation. Create a timeline of your major financial events. Stay organized. And above all, retain a family law attorney who understands how to protect your property rights in Texas.
Secure Your Property Rights with Help from Daniel Ogbeide Law
Daniel Ogbeide Law offers experienced guidance in complex property division cases throughout Houston. Their team of skilled family law and litigation lawyers, property division mediation attorneys, and contested divorce attorneys in Houston, Texas, understands the financial and emotional challenges of divorce and knows how to navigate the burden of proof for separate property.
If you’re concerned about protecting what’s rightfully yours, Daniel Ogbeide Law is ready to help. Contact them today to schedule a consultation and take the first step toward securing your future.
