This case shows how to overcome the presumption that when a spouse uses separate property to acquire land during the marriage and takes title to the land in the names of both the husband and wife, it is presumed that the interest given the non-purchasing spouse is a gift. Here, a trust was established in favor of three sisters, one of whom was the wife in the divorce case. The 23 acres was conveyed from the trust to the wife and husband and the husband claimed he owned a one half separate interest in the land. Each sister was deeded land from the trust and each deed recited that the sisters were giving up their separate interests in those properties. The trial court awarded it all to wife as her separate property. The court of appeals affirmed the trial court’s ruling and held: (1) the husband had the burden to prove he owned one half of the land as his separate property [it is not clear why the wife did not have the burden to prove it was all her separate property]; (2) the trial court properly allowed parol evidence from the wife and her sisters and brother-in-law that no gift was intended; (3) the transfer of the land was not a gift since each sister gave up her separate property interest in the others’ land; meaning there was separate property consideration for the transfers. The court of appeals stated:
The taking of title in both names does not change the result of tracing, but creates a presumption of a gift of one half of the separate property. This presumption can be rebutted b evidence clearly establishing there was no intent to make a gift. To accomplish this, parol evidence is allowed. Thus, the trial court did not err in admitting the testimony and affidavits of [the wife’s sisters or her brother-in-law].
Moncey v. Moncey, No. 06-12-00054-CV (Tex. App. – Texarkana 5/17/2013)