When you are going through a divorce, the issue of who owns what property may arise. Marital property is characterized based on when and how it was acquired. This is called inception of title; when a party has first right of claim to the property. In Texas, there is a presumption that property other than separate property acquired by either spouse during the marriage is owned by both spouses and is “community property.” Separate property is property owned or claimed before the marriage, and property that was inherited by a spouse, gifted to a spouse, or acquired from a personal injury suit.
I’ll answer the title of this blog post’s question above with an example using inception of title, tracing and mutation. Husband and Wife were married for four years. During the marriage, they purchased a brand-new sportscar “together.” When Husband and Wife decided they could not reconcile and needed a divorce, Wife wanted to keep the sportscar. Husband claimed the sportscar was community property and not Wife’s to keep, because it was purchased during the marriage. But Wife remembered that she sold her truck to purchase the sportscar. Wife’s attorney determined that Wife owned the truck before she was married to Husband and that it was her separate property. Then, Wife’s attorney traced the money from the sale of the truck and found that the money from the sale of the truck was directly used to purchase the sportscar. Therefore, because Wife’s separate property was used to purchase the sportscar, the sportscar is Wife’s separate property. Wife acquired the truck before marriage, sold it during the marriage to purchase the sportscar and used the funds from the sale of the truck to purchase the sportscar.
Written by: Jordan Watson, 3L