Texas Community Property

Front 1

Community Property: What three items are a spouse's separate property?

Back 1

1. Property owned or claimed before marriage.
2. Property acquired during marriage by gift, devise, or descent.
3. Recovery for personal injuries during marriage, except medical expenses and loss of earning capacity during marriage.

Front 2

Community Property: What are the four qualificatoins to the definition of separate property?

Back 2

1. Community property may be partitioned into separate property.
2. Tracing Principle
3. Conflict of Laws Separate Property
4. Quasi-Community Property for Purposes of Division During Divorce

Front 3

Community Property: What is the Tracing Principle?

Back 3

Assets purchased with separate funds are themselves separate property.

Front 4

Community Property: What is the Conflict of Laws Separate Property?

Back 4

Marital ownership of an asset is determined under the laws of the state in which the couple was domiciled at the time the asset was acquired.

Front 5

Community Property: What is Quasi-Community Property for Purposes of Division upon Divorce?

Back 5

Property acquired in another state, which would have been community property if acquired in TX, is treated as such for purposes of division on divorce.

Front 6

Community Property: What is community property?

Back 6

All property not shown to be the separate property of one of the spouses.

Front 7

Community Property: Who has the burden of proof for community property? Standard of proof?

Back 7

The party contending that an asset is separate property.

Clear and convincing evidence.

Front 8

Community Property: What is the Inception of Title Rule?

Back 8

The separate or community character of an asset is determined at the time acquired.

Front 9

Community Property: What type of property is installment purchases begun before marriage?

Back 9

Separate Property.

Front 10

Community Property: Whose credit are assets acquired on credit during the marriage?

Back 10

Presumptively on Community Credit.

Front 11

Community Property: What happens when community funds are used to reduce or discharge secured debt from SP or to make capital improvements on CP?

Back 11

The community estate has a claim for economic contribution. (Waivable)

Front 12

Community Property: How does one compute a claim for economic contribution for paying off/down secured debt?

Back 12

Equity * ((reduction of debt from contribution)/(equity on date of marriage + debt reduction attributable to CP + debt reduction attributable to SP)). Cannot be greater than equity in property.

Front 13

Community Property: How does one compute a claim for economic contribution for capital improvements?

Back 13

(CP funds expended)/(equity at time of first contribution + economic contribution of CP)`

Front 14

Community Property: What are two situations where there are equitable claims for reimbursement?

Back 14

1. Payments that reduce unsecured debt.
2. Inadequate compensation for time, toil, talent, and effort of one of the spouses.

Front 15

Community Property: What about adverse possession begun before marriage and completed during?

Back 15

Under "rightful" claim, SP.
As "naked trespasser", CP.

Front 16

Community Property: If title is in the spouse's name without recitation separate or community ownership, who does it belong to?

Back 16

If consideration is CP, presumed CP. However, only slight evidence needed to show gift by H to W.

Front 17

Community Property: Title in Spouse's name as "sole and separate property." Whose?

Back 17

The spouse, if the other spouse participated in the txn.

Front 18

Community Property: What about interspousal transfers, where one spouse uses separate funds to acquire property and titles it in name of other spouse. Whose?

Back 18

SP.

Front 19

Community Property: What about when one spouse uses CP funds and titles it in name of other spouse?

Back 19

SP.

Front 20

Community Property: What about when one spouse uses SP to buy property and titles it as CP?

Back 20

Both spouses hold as tenants in common.

Front 21

Community Property: What is the test for the tracing rule to overcome presumptions of separate or community property?

Back 21

LIB test.

Front 22

Community Property: How does one change SP into CP and vice versa?

Back 22

Written and signed agreement by both spouses.

Front 23

Community Property: What is a Community Property Survivorship Agreement?

Back 23

An agreement, in writing, that all or part of their CP becomes property of surviving spouse on death of spouse.

Front 24

Community Property: What must a community property survivorship agreement contain?

Back 24

Words to the effect of "with right of survivorship".

Front 25

Community Property: Are creditor's rights affected by a survivorship agreement?

Back 25

No.

Front 26

Community Property: What can a premarital agreement not cover?

Back 26

1. Cannot provide that SP will be CP after marriage.
2. Anything in violation of public policy or criminal statute.
3. Rights of a child to support.

Front 27

Community Property: When is a premarital agreement unenforcable due to unconscionability or involuntariness?

Back 27

1. No fair disclosure,
2. Right to disclosure not waived,
3. and no adequate knowledge.

Front 28

Community Property: Does a void marriage invalidate a premarital agreement?

Back 28

No, it is enforceable to the extent necessare to avoid an inequitable result.

Front 29

Community Property: When is a marital agreement terminated?

Back 29

Upon divorce.

Front 30

Community Property: If a spouse has an unrestricted right in a trust that is their SP, what is the income?

Back 30

CP.

Front 31

Community Property: Income from separate property during marriage is:

Back 31

CP - "revenue" or "fruit"

Front 32

Community Property: What are capital gains from SP?

Back 32

SP.

Front 33

Community Property: What is the question to consider when disability, pension, or other retirement benefits are at issue?

Back 33

Whether federal law preempts Texas law.

Front 34

Community Property: If participation in a retirement plan commences during a marriage, what is the entire plan benefit?

Back 34

CP.

Front 35

Community Property: What type of distribution is CP during divorce?

Back 35

Just and Right Division.

Front 36

Community Property: When is value determined for a defined contribution retirement plan? A defined benefit plan?

Back 36

1. At divorce (easily)
2. Value is frozen at divorce for just and right division.

Front 37

Community Property: When does an employee's rights in a pension or profit-sharing plan vest>

Back 37

When the employee has an indefeasible right to the employer's contributions to the plan.

Front 38

Community Property: If participation in a retirement plan begins before marriage, whose property is it?

Back 38

Part CP and part SP.

Front 39

Community Property: What rules apply for defined contribution plans begun before marriage? Defined benefit plans?

Back 39

1. Tracing rules.
2. Value at date of marriage is SP.

Front 40

Community Property: What are the three sources to which the tracing rule will look for a defined contribution plan?

Back 40

1. Contributions to the plan during the marriage (CP)
2. Dividend and interest income (CP)
3. Appreciation in the value of the assets that were in the plan on the date of the marriage (SP)

Front 41

Community Property: What does federal law state for military retirement benefits? Disability?

Back 41

They are CP.
SP.

Front 42

Community Property: What chart should I memorize for the special characterization rules?

Back 42

The chart on Page 11 of the CMR for community property.

Front 43

Community Property: If a spouse dies without a will, what does the survivor inherit?

Back 43

1. LE in 1/3rd of spouse's SP
2. If all children in common, all CP. If not, 1/2 CP.

Front 44

Community Property: If a spouse dies with a will, what does the survivor inherit?

Back 44

SP: Whatever the will says.
CP: 1/2 CP, and the other half, whatever the will says.

Front 45

Community Property: If title to CP is held in a spouse's name, is the spouse presumed to be the sole manager?

Back 45

Yes.

Front 46

Community Property: What kind of liability does each spouse have for the other's contracts for necessities? What property can be reached?

Back 46

Personal liability.

ALL property.

Front 47

Community Property: If a spouse enters into a K for non-necessities, what property of the other spouse cannot be reached?

Back 47

SP and sole management property.

Front 48

Community Property: What is the general rule for what property can be reached for liability? What is the exception?

Back 48

All property over which the contracting spouse had management powers.

Where the contracting spouse was acting as an agent for the other.

Front 49

Community Property: Does Texas recognize court-ordered alimony?

Back 49

No, except that other state's decrees will be enforced.

Front 50

Community Property: What are the prereqs for receiving spousal maintenance?

Back 50

1. Marriage must last 10 years or more.
2. Lacks sufficient financial resources to provide for minimum rsbl needs.
3. Has either
a. incapacitating disability
b. custodian of child from marriage who requires substantial care
c. Lacks earning ability.

Front 51

Community Property: What is the maximum amount of maintenance that can be ordered?

Back 51

Lesser of $2500/month or 20% of monthly earnings.

Front 52

Community Property: What is the time limit for maintenance?

Back 52

Three years, unless child or spouse is disabled.

Front 53

Community Property: Can a maintenance order be modified upward? Downward?

Back 53

No.
Yes, by showing that circumstances of either party have materially and substantially changed.

Front 54

Community Property: May a court alocate responsibility for community obligations without making a "just and right" division?

Back 54

Yes.

Front 55

Community Property: What are the eleven factors considered when making a just and right division>?

Back 55

1. Disparity of incomes & earning capacities.
2. Opportunities, financial condition, and obligations.
3. Education
4. Physical condition
5. Disparity of SP
6. Ages
7. Benefits non-fault spouse would have received.
8. Divisibility of property.
9. Length of marriage
10. Fault
11. Waste or depletion of CP.

Front 56

Community Property: What is the standard for an appeals court to overturn a trial court's decision on division? What is the appeals court's only option?

Back 56

1. Manifestly unjust.
2. Revers and remand the entire community estate.

Front 57

Community Property: Does the Community Property handout have a review at the end?

Back 57

YES.