Tracing Separate Property
Proving what was yours before, to a clear and convincing standard.
When one spouse controls the information
In a lot of marriages one spouse handles the finances. When that marriage ends, the other spouse starts the case without knowing what exists. The tools for that are formal: sworn inventories and appraisements, requests for production, subpoenas to banks and employers, and depositions.
Where community assets have been given away, hidden or spent outside the marriage, Texas recognizes claims for fraud on the community. A court that finds it can reconstitute the estate and award a disproportionate share to compensate the wronged spouse.
How This Plays Out in Practice
Proving what was yours before, to a clear and convincing standard. The specifics turn on facts — the length of the marriage, what is in the estate, whether children are involved, and how much the two of you still agree on. What does not change is the framework: Texas courts apply the Family Code, and the outcome follows from how your facts meet it.
Lisa G. Garza handles these matters from the firm's Dallas and McKinney offices, for families throughout North Texas.
Questions
Is my spouse's retirement account part of the divorce?
The portion earned during the marriage is community property even if only one spouse's name is on the account. Dividing a qualified retirement plan generally requires a qualified domestic relations order entered along with the decree. Without that separate order, the plan administrator will not pay a share to the other spouse.
What happens to the house?
It depends on how the house is characterized and on what else is in the estate. Common outcomes are sale with the proceeds divided, one spouse buying out the other's interest, or one spouse keeping it. Where separate-property funds paid for a community home or community funds paid down a separate-property mortgage, a reimbursement claim may be owed between the estates.
What if my spouse is hiding assets?
Formal discovery is the answer — sworn inventories and appraisements, requests for production, subpoenas directly to banks and employers, and depositions under oath. Where community property has been concealed, given away or wasted, Texas recognizes a claim for fraud on the community, and a court may reconstitute the estate and award a disproportionate share to the wronged spouse.
Is Texas a 50/50 state?
No. Texas is a community property state, which is not the same thing as an equal-division state. Texas Family Code § 7.001 directs the court to divide the community estate in a manner that is just and right, having due regard for the rights of each party and any children. Disproportionate divisions are common and legal.