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Community Property/Marital Property
South Texas College of Law Houston
Paulsen, James W.

3 Estates
1.      Husband’s SP estate – this is the estate that existed before the marriage and continues during the marriage, even after marriage, until death.
2.      Wifes’s SP estate – same thing as husband’s.
3.      The CP estate – This estate is created at the time of marriage and disappears upon dissolution of the marriage by divorce or death of a spouse.
·         It starts with no assets. 
·         At death each own 50% as their own.
o       Compare with Joint Tennant with right of survivorship, in which both spouses own 100% simultaneously.
Basic Characterization
1.      Presumed CP – default rule
a.      To prove SP, burden is Clear and Convincing.
o       C & C burden: Oral testimony must be corroborated.
§         Even undisputed oral testimony must be corroborated.
o       Appellate review: with the evidence, a reasonable fact finder could have formed a firm belief or conviction that the finding was true
2.      “Onerous efforts” test – anything worked for during marriage is CP
·         Does not include “reasonable effort for control and management” of SP
3.      “Implied exclusion” test – anything described in the constitution is SP, all else is CP. The constitution expressly lists these as SP, property acquired…:
a.      Owned or claimed before marriage
b.      Gift
o       Intent at time of transfer
o       Deed between family or spouse without consideration presumed gift
c.      Devise or descent
d.      Agreement
e.      Mutation
o       Determined by tracing
f.        PI recovery
                                                  i.      For injury and P&S = SP
                                                ii.      Loss of income and earning = CP
                                              iii.      Punitive damages = Probably SP
g.      Separate credit (no case decisions yet)
o       General rule: credit purchase is CP
o       However, THEORETICALLY, if creditor agrees to look to one spouse’s SP only as collateral, then the credit is SP
4.      Love v. Robertson: Love = Widow, Robertson = sole heir. Dispute arose over ownership of two slaves (Peter & Finn). Facts: deceased inherited $1030. $700 was used to buy Peter. $330 of it was combined with $470 of earnings to buy Finn. At death Peter went up in value to $1,000, Finn stayed at same value. Probate Ct. found slaves to be separate. District upheld.
a.      Held that property purchased with separate property or received due to personal debt is separate. Created concept of Mutation.
b.      Presumption of community property… no matter whose name is on title.
c.      Tracing (mutation) by clear and convincing
d.      Increase in value of separate property remains separate.
e.      Property acquired with mix SP and Community debt results in proportional ownership.
Howard v. York: Parallel to Cartwright. Wife had separate cattle. Question was whether increase in cattle was community or separate. Lower Ct held increase in cattle was separate.
Held: Overruled. Creates Implied Exclusion test. The Act of 1848 specifically stated that increases in land and slaves remains separate property. Expressio unius est exclusio alterius. Cattle is not listed and therefore the statute does not apply to that species of property.
CHILDREN of SP cows is CP
DeBlane v. Hugh Lynch & Co.: HL won a judgment against H and 10 bales of cotton were attached to pay the debt. W claimed that the bales grew on land that was separate property of W and picked by labor of slaves that were separate property of W. Ct. held that bales were c

s CP, act of 37th legislature declares rent to be SP. Lower court followed statute and found for W (SP).
Held: Rule of “Implied Exclusion” was described in detail. Court looked to wording of older constitutions to identify a trend. They are all worded similarly and all suggest that rent is not an exclusion and is therefore CP. Statute is unconstitutional. Found for Arnold. W’s rent is CP.
Fitts v. Fitts: H was incompetent, so he made gift of all property to W. In divorce, W got all except H got 1/5 LE in earnings of slaves. W appeals decision.
Held: CP may be divided at divorce as the court sees fit provided that it does not divest title. In this case, title remains with W, but some support to H is just.
Eggemeyer v. Eggemeyer: H owned 1/3 of farm as SP as gift from his mother. In divorce, trial court divested property from H and gave entire farm to W. Ct. Civ App reversed stating that H must support his children, but without divesting property.
Held: Rents, revenue, and income can be used to support children, but property cannot be divested. § 14.05 allows for property to be put aside to be administered for the support of the child. Note: it states “administered” not “divested.” Property may not be taken without “a justifying public purpose and compensation must be paid.” SO H still owns 1/3 of farm SP.
Inception of Title – This determines when the property was acquired, when acquired over time.