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 prove what portion is separate.
Since it was spent must trace the property. Hire C.P.A. lawyer as an expert witness. One must have documentation and proof. A
B. The Constitution of 1876
1. Provisions
Tex Constitution of 1876, article XVI section 15
All property, both real and personal of the wife, owned or claimed by her before marriage, and acquired afterward by gift, devise, or decent, 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 as that held in common with her husband. Laws shall by passed providing for the registration of the wife’s separate property
Notes, Comments, Questions
1. Community property cannot be made into separate property
2. Wanted to protect the daughters of the big ranch owners
3. If transfer occurs between spouses presumed to be a gift and thus separate property
Hypo
Two lots o
one spouse may employ the wives separate property (slaves) to work the husbands separate land thus increasing the husbands separate property.
2. The principle which lies at the foundation of the whole system of community property is, that whatever is acquired by the joint efforts of the husband and wife, shall be their common property.
Stringfellow v. Sorells
The creditor attempted to levy on the increase value of animals that were the separate property of the wife. Live stock that is separate property will add increase to the community estate if the livestock has offspring. Increase is to mean offspring not increase in value. \Policyà To allow the execution against the mules would diminish the separate property of the wife
Notes, Comments, Questions
1. The appreciation of property held during marriage that is separate property continues to be separate property. Remedy is to seek reimbursement is the increase in value is due to work on the non-owning spouse
2.
Kellet v. Trice
1. Wife’s separate property is protected against alienation by the husband by constitutional statute and she cannot, by power of attorney or otherwise enable to divest her title
2. One may make a gift of comm
