The Texas Family Code states that property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Clear and convincing evidence is necessary to counter the community property and establish that it is separate property.  Clear and convincing evidence means it will easily convince the judge it is separate property, not community property.

The plain wording of the Family Code creates a presumption that all property owned by a husband and wife during a divorce is their community property. The Family Code requires the spouse claiming separate property to prove it with clear and convincing evidence.  The general rule is that someone must show the history and clearly identify the property claimed as separate property. If the evidence shows the separate and community have been commingled, the it is presumed that the entire property is community property and will be divided.

Separate property retains its character as separate so long as the party asserting separate ownership can clearly trace the separate property back to to its time of acquisition. Any doubt as to whether it is separate of community is then resolved in favor of the community estate.

What about Mineral Rights?

The issue is whether mineral rights were separate or community property at the time of divorce decree.  The husband may claim that the mineral rights were a gift from his parents.  Parties claiming certain property as their separate property have the burden of rebutting the community property presumption.  To do so, they must trace and clearly identify the property in question as separate by clear and convincing evidence.  In the case of a husband claiming the mineral right were a gift, he did not attend the final divorce hearing, or offer any proof that the deeds were his separate property.  In this particular case, the husband did not rebut the community property presumption by clear and convincing evidence.

This serves as a reminder that a claim of separate property is not evidence that it is separate property.  The person making the claim must provide proof that it is separate from the community estate.  Without proof, all property in a marriage is considered to be community property and as is to be divided as part of the divorce settlement.