Land Partition Rules In Texas
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Unless both spouses agree, a spouse must prove that something is separate property by “clear and convincing evidence.” If a spouse cannot prove something is separate property, it is considered to be community property. Read Gathering and Presenting Evidence to help you understand what is allowed in court.
Even if only one spouse's name is on the deed, any property bought during the marriage is presumed to be community property, unless it was bought with separate property funds. The spouse claiming it as separate property must prove it in court.
Property Division: Any property acquired during the marriage is considered community property and will be divided equally upon divorce, just like in a formal marriage. For example, if you buy a house together while in a Common Law Marriage, that house is considered joint property, and both parties have equal ownership.
It is presumed that any property on hand at the time of divorce is community property. The spouse who is claiming an asset as his/her separate property has the burden of proving that claim by clear and convincing evidence.
One common misconception among divorcing couples in Texas is that all assets are automatically split 50/50. The automatic 50/50 split is a myth!
Texas courts are required to partition property even if only one co-owner makes such a request, and the courts have no wiggle room or discretion. The court must order the property partitioned. Partition is sometimes referred to as a “forced sale.” Partition only applies to real property and not personal property.
There are two potential pathways in seeking a partition: Partitions may be in kind (meaning that property is divided into separate parcels and each parcel is allotted to a separate owner) or by sale (meaning that property is sold and sale proceeds are divided among the owners).