Everything Is Presumed Community, and the Way Out Is a High Burden
Program and regulatory figures verified October 10, 2026. Details change; confirm your scenario with us.
Two short sections do most of the work in a Texas file, and the second one sets a burden people underestimate.
What is community property
Tex. Fam. Code § 3.002, in one line:
"Community property consists of the property, other than separate property, acquired by either spouse during marriage."
★ It is defined as a residual: whatever is acquired during the marriage and is not separate. Which puts all the weight on the second section.
★★★ The presumption, and the burden
"(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. (b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence."
★★★ Two things to notice.
- ★★ "Possessed", not "titled". The presumption attaches to property in a spouse's possession during or at dissolution, which is broader than a question about whose name is on a deed.
- ★★★ "Clear and convincing evidence" is a heightened standard, above the ordinary civil standard. Texas does not merely presume community; it makes the way out demanding.
★★ How that differs from California
California also presumes property held in joint form to be community, but Cal. Fam. Code § 2581 lets the presumption be rebutted by a clear statement in the deed or a written agreement: a documentary test.
★★ Texas sets a standard of proof instead. In practice that is a different kind of exercise: not "produce the document", but "convince the court, clearly and convincingly, by whatever evidence you have". ★ For a long marriage that usually means tracing, and tracing means records.
★★ The practical consequence, which is about paperwork
If you believe part of the house is your separate property, money from before the marriage, an inheritance, a gift, the thing that will decide it is evidence, to a heightened standard.
★★ The records that prove it are old: closing statements, account histories, the trail from the separate source into the purchase. These are exactly the documents people no longer have. ★★★ If you may have a separate-property claim, start looking for that paperwork now, not when someone asks for it. That is the single most useful sentence on this page.
★ And then the division is still not equal
Characterising property as community does not tell you how it splits. Tex. Fam. Code § 7.001 requires a division that is "just and right", not an equal one. Which surprises nearly everyone.
★ Our lane
We are a lender. We quote these sections because the buyout amount depends on them. We are not telling you what is community or separate in your case, whether your evidence meets the standard, or how tracing will come out. We are not a law firm and we make no attorney referrals.
Mike Certo, NMLS #260555. (480) 296-6513 · mcerto@cfmtg.com.
Frequently asked questions
What is community property in Texas?
Texas Family Code section 3.002 defines community property as the property, other than separate property, acquired by either spouse during marriage. It is a residual definition, so the presumption in section 3.003 does most of the work.How hard is it to prove separate property in Texas?
Texas Family Code section 3.003 presumes property possessed by either spouse during or on dissolution of marriage to be community property, and sets the degree of proof necessary to establish separate property at clear and convincing evidence, which is a heightened standard above the ordinary civil one.Is the Texas community property presumption about title?
The statute says property 'possessed' by either spouse, which is broader than a question about whose name appears on a deed. California by contrast ties its joint-form presumption to the deed and allows rebuttal by a clear statement in the deed or a written agreement.Mike Certo · NMLS #260555 · Cornerstone First Mortgage NMLS #173855 · Equal Housing Lender. Educational content about mortgage financing during and after a divorce. Not a loan commitment, and not legal, tax or financial advice. Cornerstone First Mortgage is a lender; it is not a law firm, does not represent any party to a dissolution, does not make attorney referrals, takes no position on how property should be divided, and does not advise on how an owelty of partition should be documented or closed. Texas homestead and property-division rules are set by the Texas Constitution and the Family Code and applied by the courts; homestead tax exemptions are administered by county appraisal districts. Agency requirements described here are Fannie Mae Selling Guide provisions current as of the date shown and are subject to change and to lender overlays. Housing market figures describe the twelve months to August 2026 and are not a forecast. All loans are subject to borrower, property and program qualification.