How to Prove Non-Community Property During Divorce In Texas ?
All property present upon the dissolution of a marriage is presumed to be community property. See TEX. FAM. CODE ANN. 3.003(a) (Vernon 1998).
To overcome this presumption of community property, the spouse claiming certain property as separate property must by clear and convincing evidence trace and clearly identify the property claimed to be separate. See id. at 3.003(b); Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975); McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.--Houston [1st Dist.] 1995, writ denied).
Mere testimony that the property was purchased with separate funds, without any tracing of the funds, is generally insufficient to rebut the presumption. See Robles v. Robles, 965 S.W.2d 605, 614 (Tex. App.--Houston [1st Dist.] 1998, pet. denied).
Moreover, only when separate funds can be traced through a joint account to specific property purchased with those funds, without surmise or speculation about funds withdrawn from the account in the interim, is the property purchased also separate. See McKinley v. McKinley, 496 S.W.2d 540, 543-44 (Tex.1973); Welder v. Welder, 794 S.W.2d 420, 425(Tex. App.--Corpus Christi 1990, no writ).