Legal Question in Family Law in Texas

after marriage my daughters father died and she recieved insurance money, bought a home with the money, now getting a divorce and selling the home does she have to split the money with soon to be ex?

Asked on 7/24/19, 6:55 am

1 Answer from Attorneys

Thomas Daley KoonsFuller PC

It depends on whether (a) there is a mortgage on the property; and (b) how she took title to the property (her name or both of their names). If she paid for the house in full with her inheritance and took title only in her name, that's the cleanest way to prove that 100% of the house is her separate property.

In Texas, all property owned by either spouse is PRESUMED to be community property, which the court can divide. A person who alleges that property is her separate property, and thus exempt from division between the spouses, must prove by "clear and convincing evidence" that the property is her separate property.

In this case, either she'd want her husband to admit under oath that the home was purchased with her inheritance (unlikely) OR she'd want to get a business record affidavit attached to the insurance proceeds letter she received, a business records affidavit for the bank statement where she deposited the insurance proceeds and withdrew them for the house purchase, then another business records affidavit for the closing file from the title company who handled the closing. This stream of documents would prove by clear and convincing evidence that the downpayment was her separate property.

Now, if the deed to the property lists her husband, she faces the presumption that she gifted to him 1/2 of the ownership of the house (bad move, but it happens all the time). If that happened, then the house would be characterized as jointly owned separate property: She'd have a 1/2 undivided interest in the house and so would he. She would have a reimbursement claim for the downpayment. Be sure to look at the Special Warranty Deed, or Warranty Deed, or other deed conveying ownership interest--not the deed of trust (if there's a mortgage on the property).

Separate property issues can be very complex and tricky to prove. If you miss the legal standard, it doesn't matter what is fair or right, you just lose. For those reasons, I encourage her to contact a good (very good) family law attorney in her area, bring all her documentation along, and get an opinion based on her detailed facts.

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Answered on 7/24/19, 7:25 am

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