Mark Scroggins 0:06
Hey folks, Mark Scroggins with Scroggins Law Group back to answer some more of your frequently asked questions between the reclamation transformation podcast. One of the things, though, that is really important to remember is that the answers to these questions Do not create an attorney-client relationship between you and me, or you and my law firm. So if you have questions that you want to follow up on, and you’re actually seeking representation, reach out to Scroggins Law Group or reach out to another law firm, and they can walk you through the process. What’s the difference between property division and community property? Well, the significance of that is that a court in Texas can only divide community property, a court cannot divide what is known as separate property. So let’s start off by what’s separate property, separate properties, anything that you own prior to marriage, it’s any gift that you’ve ever received from any source. It’s anything you have inherited or received by devise. Or the recovery for personal injuries sustained during marriage — except any recovery for loss of earning capacity during marriage, which is community property. Now, there’s a lot more to it than that you can get into situations where monies are commingled. But if you take separate property off the table, then everything you are left with is community. Under Section 3.002 of the Texas Family Code, community property is formally defined as all property, other than separate property, acquired by either spouse during the marriage, and this presumption applies regardless of whose name appears on the title or account. To overcome this presumption, the spouse asserting a separate property claim must provide clear and convincing evidence tracing the asset back to a qualifying separate source, such as pre-marital ownership, a gift, or an inheritance. When separate and community funds have been commingled in the same account, Texas courts apply a “community out first” presumption, meaning withdrawals are assumed to come from the community portion, making detailed financial records and, in complex estates, forensic tracing essential to protecting any separate property claim.