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Community Property/Marital Property
South Texas College of Law Houston
George, Pamela E.

Marital Property
Chapter One
The Texas Marital Property System
A.            Introduction
1.         Property possessed by either spouse during or on dissolution of marriage is presumed to be community property
            2.            This presumption can only be rebutted by clear and convincing evidence
            3.            Separate property defined Tex Fam Code 3.003 (b)
 
                        A spouse’s separate property consists of:
                        (1)            the property owned or claimed by the spouse before marriage
(2)            the property acquired by the spouse during marriage by gift, devise, or descent
(3)            the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage
 
4.         Community property consists of the property, other than separate property, acquired by either spouse during marriage
5.         Characterization means to determine whether marital property was acquired at a time or in a manner, which would deem it, separate property of a spouse. If the property, by application, or constitutional or statutory definitions or judicial precedent is characterized as separate property, the community presumption has been rebutted
Hypo
H & W each put ½ of paycheck into joint and separate account in community property state but managed each account separately. Create one account where both have joint management control. Judge can award money in man’s separate account to wife for her living expenses if they were to divorce. 
Liability on the martial estateà Example, wife has charge account at a store. During summer months she was unable to pay bills. Third party files lawsuit (Neeman Marcus charge card). Three accounts (two separate and one joint). The account that is separate and in the husband’s name is not reachable but the other two are. But if both are listed on credit card then both are liable and everything is reachable
 
Notes, Comments, and Questions
Problem
            Range Rover is presumed Community Property.   Can rebut by clear and convincing evidence. Presumed community if other side stipulates. 
House is presumed community.   Client has a limp and cain. Personal injury settlement received eight months earlier. 200k gave 40% to lawyer for 120k remainder.
House, car, check for 120k. Presumed community must pro

Equitable distribution is the term used at divorce to partition the community.
4.         Upon divorce the court will look at:
            (1)        Earning capacity
            (2)        Children (who has custody)
            (3)        Length of marriage
            (4)        Fault
            (5)        Physical cruelty
Hypo
Own car get married and other spouse makes payments while you are in law school. The car is still separate property. Economic contribution or reimbursement is options for recovery.
 
Hypo
Enter marriage inherited home in heights 1st year of marriage give up job went to law school part time and worked to fix house.  Purchased FMV 80k increase due to work to 160k. 
This is more than economic contribution but community cannot be reimbursed .
 
Rights of third parties to collect from couple i.e., both borrow 1000k sighed at divorce wife is made to pay husband but judge cannot change the contract the husband and the