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

I.          Constitution of 1876
            A.        Provisions
                        “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.
            B.        Statutes and Decisions
                        1.         DeBlane v. Hugh Lynch
Creditor of H wanted to take W’s bales of cotton. The ct said that anything produced after marriage is community. Taken literally, this means the bales of cotton. This is known as the Doctrine of Onerous Title (if it is acquired by joint efforts it is community property).
                        2.         Stringfellow v. Sorrells
The increase in the value of mules was at issue. Increase as applied to livestock means offspring but because mules cannot reproduce the creditor argued the increase should include the increase in monetary value due to the community’s effort in training, ect… The ct rejected this argument.
                        3.         Kellet v. Trice
W had lots of money. W conveyed property to a trustee and trustee conveyed it to H and W. The issue was whether this could change the character of the property. The ct said no. Until 1/1/2000, you could not change separate property into community property in Texas.
            C.        Statutory Changes 1911-1917
                        The changes gave the W the right to manage, dispose of and control separate property. They also exempted her separate property from H’s debts. 
                        1.         Arnold v. Leonard
(Still under 1876 Constitution) The Legislature added a statute that rents and revenue’s arising from W’s separate property remains separate property. This goes beyond the constitution and it is unconstitutional for the ct to expand beyond the constitution. The Legislature can pass a law exempting W’s rents and revenues from H’s debts because that doesn’t change the character of the property.  
                        2.         Northern Texas Traction Co. v. Hill
The statute at issue said that “all property and money received as compensation for personal injuries sustained by the wife shall be her separate property, except such actual and necessary expenses that may have accumulated against the husband for hospital fees, medical bills, ect…”   The ct held that this provision was unconstitutional because of the doctrine of implied exclusion (just as in Arnold). 
II.        Constitution as Amended in 1948
            A.        Provisions
                        “All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife…. ; provided that husband and wife, without prejudice to existing creditors, may from time to time by written instrument as if the wife were feme sole partition between themselves in severalty or into equal undivided interests all or any part of their existing community property or exchange between themselves the community interest of one spouse in any property for the community interest of the other spouse in other community property, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property of such spouse.”
                        New provision allows a post-marriage partition or an exchange in interests.
            B.        Statutes and Decisions 1948-1967
                        1.         Williams v. McKnight
Must partition before you can create a joint tenancy with right of survivorship. 
            C.        Statutes and Decisions 1967-1980
                        1.         Few v. Charter Oak Fire Ins.
                                    A worker’s compensation claim is community property.
                        2.         Graham v. Franco
Compensation for personal injuries is separate but not to the extent that it encompasses compensation for lost wages or loss of earning capacity because they would presumably be translated into earnings during the marriage. 
                        3.         Wyly v. Commissioner
H gifts income producing property to W. The question was: is 26 U.S.C. §2036 applicable to any gift of property from a decedent by unavoidable operation of Texas law is left with a residue of interest in any income generated by such gifted property. The ct found that the Act does no automatically render some portion

reasonable disclosure of the property or financial obligations of the other party, this was not waived in writing voluntarily, or they did not have adequate knowledge.
                        2.         Revocation must also be in writing.
            C.        Postnuptial Agreement
            D.        Separation Agreements- PSA, must be approved by the court if it is to be part of divorce decree (must be just and right).
            E.         Statutes and Decisions 1980-present
                        1.         Patino v. Patino
The primary question in this case in whether an agreement between spouses is to determine if it is an agreement incident to divorce or if it is a postnuptial for the purpose of changing character of property. The court inferred that the trial court found the agreement to be a PSA because the trial ct used the fair and equitable standard. The standard for a separation agreement is that it be fair and equal. 
                        2.         Bradley v. Bradley
Their prenuptial was evidence of their intent to partition and separate but this was not enough.
                        3.         Dewey v. Dewey
If it is not listed in the pre-marital agreement it is community. The elements of a gift are (1) intent to make a gift, (2) delivery of the property, (3) acceptance of the property.
H borrowed money from an insurance policy held by the corporation. The ct said this was a corporate debt not H’s debt so he was not entitled to reimbursement. 
The factors to look at in dividing a community are:
(1) the relative earning capacity and business experience of the parties;
(2) the educational background of the parties;
(3) the size of the separate estates;
(4) the age, health, and physical conditions;
(5) the fault in the break-up;
(6) the benefits the innocent spouse would have received had this marriage continued; and
(7) the probable need for future support.