Often times a party in a divorce wishes to have the court affirm the separate nature of a particular piece of property. They must therefore overcome the presumption set up by the Texas Family Code that all property in a marriage is of a community nature.
“Clear and Convincing Evidence” must be presented to rebut the community property presumption. (TFC 3.003). see McKinley v. McKinley 496 SW2d 540, 543 (Tex. 1973). The standard requires that “a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” Stavinoha v. Stanivoha, 126 SW3d 604. To prevail in court, a party generally must produce not only testimony, but also documentary evidence of the separate nature of community property. See Boyd v. Boyd, 131 SW3d 605.
The evidence to rebut the community property presumption should establish the time and manner it was acquired. This is known as the “inception of title”. The evidence should also any mutations that may have happened to the property during the marriage. This is known as “tracing”. In tracing, small gaps in establishing a property’s nature through time will not necessarily prevent a party from proving the separate nature. See Faram v. Gervitz-Faram 895 SW2d 839. In that case, evidence was found to be sufficient to establish the separate nature even though the records on the investment account were incomplete. The party must show enough evidence to convince the trier of fact to form a firm belief or conviction of the separate nature.