She will accept questions through midnight on Monday, 11/27
Note: On the test, always start with the community property presumption and then move forward.
Chapter 1: The Texas Marital Property System
– Marital Property – The study of the effect that marriage has on property ownership.
– There are 9 community property states. Even amongst these, TX is different b/c it is Constitutionally Established (Tex. Const. art. XVI, §15).
– Three ways to dissolve a marriage: Death, divorce, annulment
Marital Property System: governs ownership, management, liability, and disposition of all property possessed during and upon dissolution of a marriage
i. Defined specifically by the Constitution – Property owned or claimed before marriage or that is acquired afterword by gift, devise, or descent. (This is the basic definition; it has been expanded on).
1. This definition reigns supreme and cannot be impinged upon by either the legislature or by husband and wife
ii. Defined by Tex. Family Code §3.001: 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.
a. This part is what makes it different from the Constitution.
i. The Texas Constitution does not specifically define community property. There are two schools of thought, although neither takes precedence:
1. Acquisition under the Doctrine of Onerous Title (positive definition): Whatever is acquired by the joint efforts of the husband and wife shall be their common property.
2. Doctrine of Implied Exclusion: Community property is that property which does not meet the constitutional definition of separate property.
ii. Defined by Tex. Family Code §3.002: 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.
i. This presumption is not limited to property purchased or otherwise acquired during marriage. Thus, upon death or divorce ALL property possessed by the spouses is presumed to be community property.
ii. In order to rebut this presumption, a party must present CLEAR & CONVINCING EVIDENCE that the property is separate.
1. This evidence must generally trac
isition was partially paid for by separate funds and the remainder by the community can yield a tenancy in common btw a spouse’s separate estate and community:
a. This is different than a community acquisition that is later paid for by one spouse’s separate property, which yields only a reimbursement or economic contribution in favor of the separate estate, not separate ownership.
i. Tenants in Common: These have separate, but undivided interests in the property; the interest in each is descendible and may be conveyed by deed or will. There are no rights of survivorship.
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