Chapter 1: The Texas Marital Property System
Marital Property System: governs ownership, management, liability, and disposition of all property possessed during and upon dissolution of a marriage
§3.001 Separate Property: A spouse’s separate property consists of: (a) The property owned or claimed by the spouse before marriage; (b) The property acquired by the spouse during marriage by gift, devise, or descent; (c) The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
§3.002 Community Property: Community Property consists of the property, other than separate property, acquired by either spouse during marriage.
§3.003 Community Property Presumption: (a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. (b) This presumption can only be rebutted by clear and convincing proof that the property in question is separate property.
Characterize: to determine whether marital property was acquired at a time or in a manner which would deem it separate property of a spouse.
Why does it make a difference? Only community property can be divided by the judge in a divorce.
Community property presumption: always begin with this. The person claiming separate property must rebut this presumption by clear and convincing evidence.
Three characterizations of property: (1) Community property, (2) Husband’s separate property, (3) Wife’s separate property
Management of property: 5 categories (1) H separate that he manages (2) W separate that she manages (3) Community property that H solely manages (4) Community property that W solely manages, (5) Community property that is jointly managed
The Constitution of 1876
1876 Constitution’s Definition of Separate Property: All property, both real and personal of the wife, owned or claimed by her before marriage, and acquired afterward by gift, devise, or descent, shall be her separate property, and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband. Laws shall also be passed providing for the registration of the wife’s separate property.
i. Limited to gift, inheritance, or before marriage property.
ii. You couldn’t agree that something would be separate property.
iii. You couldn’t agree to split something so half would be his and half would be hers
iv. Single most limiting aspect of the definition of separate property: gender. The constitution does not define separate of men. The man manages the property, but the woman owns it
DeBlane v. Hugh Lynch: Judgment against H alone. Judgment levied against cotton, which was produced by slaves and land that are separate property of W. Crops produced on separate property land is community property. An increase in value of land that is separate property is separate property.
i. The definition of separate property includes the increase of all lands or slaves thus acquired.
ii. “Increase” means the increase in market value. So if her separate property was worth $100 at the time of marriage and upon divorce it was worth $1000, that $900 is separate property. But growing crops or collecting rent on that separate property is community property. Possible Exception: Timber – takes 20 years to grow timber and once it’s gone the value is gone.
iii. Note: keep this case in mind. The character of the crops will not change as time goes on in the course of the law, but what will change is whether or not the crops can be used to satisfy H’s debt.
owned separate property; she was the bread winner. The couple had a volatile relationship, but her money kept them together, because if they divorced, she would keep all her separate property. H managed W’s property. H takes the bulk of her property, passed it to a trustee, who conveyed it back to H & W as community… trying to turn it in to community property. Can the H, under his management and control powers of W’s separate property, have the leeway to do this? No. This is a mere agreement that would change the character of property, and character of property is set at the time of acquisition, and an agreement can not change what has been constitutionally defined… conveyance is ineffective. Character of property is set at the time of acquisition and an agreement cannot change what has been constitutionally defined.
i. W could have gifted the property to H, which would make it H’s separate property.
ii. What is the only way in which this property could be turned into separate property? Purchasing the property with community property funds. (Community pays her FMV so the land is community property and the money is separate property.)
iii. can’t change property from SP to CP by mere agreement
iv. now § 4.202 allows agreement to convert SP to CP
1911: married woman could obtain an order of the district court to remove her disability of coverture.