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Community Property/Marital Property
South Texas College of Law Houston
Musselman, James L.

1.      TEXAS MARITAL PROPERTY SYSTEM
a.       Partition agreements:
                                                   i.      4.102- provides that if spouse do partition property, that future income from that property is partitioned as well. Income is separate property. 
                                                 ii.      Not easy to set aside a partition agreement.
                                                iii.      4.102-partition agreements must be in writing,  
                                               iv.      Under the Texas constitution you can agree however the money should be partitioned. 
                                                 v.      4.102- Partition or Exchange of Community Property- at any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property. The partition or exchange of property includes future earnings and income arising from the property as the separate property of the owning spouse unless the spouses agree in a record that the future earnings and income will be community property after the partition or exchange. 
                                               vi.      4.102 partition or exchange of community property- at any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spous’s separate property. The partition or exchange of property includes future earnings and income arising from the property as the separate property of the owning spouse unless the spouses agree in a record that the future earnings and income will be community property after the partition exchange. 
                                              vii.      4.103-agreement between spouses concerning income or property from separate property-at any time, the spouses may agree that the income or property arising from the separate property that is then owned by one of them, or that may thereafter be acquired shall be the separate property of the owner. 
                                            viii.      4.104-Formalities- a partition or exchange agreement must be in writing and signed by both parties. 
1.      A written instrument is required in order to partition an exchange community interests. 
2.      Document must also contain words of promise or agreement. 
3.      must actually state it is a partition of community property.
4.      There must be an explicit “partition agreement”. 
5.      Income tax returns lack intent for agreement to partition.
                                               ix.      Is it enforceable? Look at 4.006
1.      A premarital agreement is not enforceable if the party against who enforcement is requested proves that:
a.       The party did not sign the agreement voluntarily; or
b.      The agreement was unconscionable when it was signed and, before signing the agreement, that party:
                                                                                                                           i.      Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
                                                                  

spouses unless there was a particular kind of agreement still valid for second marriage. 
1.      In contracts that don’t have time limits, it is presumed to last for a reasonable amount of time. Here, reasonable amount of time is found to be during length of first marriage. 
                                                iii.      Cannot agree before marriage to change SP to CP as there is no community at this point. 
                                               iv.      4.002 Formalities of premarital agreement: 
1.      Must be in writing (002)
2.      have consideration (002)
                                                 v.      4.003- content (broad as to what it must contain)
1.      The parties to a premarital agreement may contract with respect to:
a.       The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
b.      The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control the property;
c.       The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
d.      The modification or elimination of spousal support;
The making of a will, trust, or other arrangement to carry out the provision of the agreement;