Recent Posts in Marital Property Category
| November 22, 2009 |
| Presumption Of Community Property At Dissolution |
| Posted By Elias Lorenzana |
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How is property classified in Texas at the time of dissolution of the marriage?
All property on hand at the dissolution of marriage is presumed to be community property. Long v. Long, 234 S.W.3d 34, 37 (Tex.App.--El Paso 2007, pet. denied); Tex.Fam.Code Ann. § 3.003(a) (Vernon 2006).
Althoug, this is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Long, 234 S.W.3d at 37; Tex.Fam.Code Ann. § 3.003(b).
Separate Property.
Property owned before marriage, or acquired during marriage by gift, devise, or descent, is separate property. Long, 234 S.W.3d at 37; Tex.Fam.Code Ann. § 3.002. An example of this would be if the parent of one spouse were to give a cash lump sum gift to that spouse.
Where an asset is purchased during marriage with monies traceable to a spouse's separate estate, the asset may appropriately be characterized as separate property. Long, 234 S.W.3d at 37. If said funds were used in the purchase of an asset or property for the marital estate, then said spouse would also have a claim for reimbursement of his or her separate property, so long as the funds utilized for the marital estate could be traced back to the spouse' separate property. |
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| November 22, 2009 |
| Reimbursements in Texas Divorce Litigation |
| Posted By Elias Lorenzana |
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In Texas divorce cases, reimbursements come into play when one spouse contributes property, funds or assets to the community estate or for the benefit of the other spouse. In such cases, when the parties a marriage separate or divorce, the other contributing spouse may have a claim for equitable reimbursement.
The rule of reimbursement is purely an equitable one. Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex. 1982); Lucy v. Lucy, 162 S.W.3d 770, 776 (Tex.App.--El Paso 2005, no pet.). It is not an interest in property or an enforceable debt, per se, but an equitable right which arises upon dissolution of the marriage through death, divorce, or annulment. Lucy, 162 S.W.3d at 776. An equitable right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Id. A claim for reimbursement includes payment by one marital estate of the unsecured liabilities of another marital estate. Tex.Fam.Code Ann. § 3.408(b)(1)(Vernon Supp. 2008). The trial court resolves a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset if the court determines it to be appropriate. Tex.Fam.Code Ann. § 3.408(c). Benefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate on property that does not involve a claim for economic contribution to the property. Tex.Fam.Code Ann. § 3.408(d). The party seeking reimbursement has the burden of pleading and proving that the expenditures and improvements were made and that they are reimbursable. Vallone, 644 S.W.2d at 459.
The Lorenzana Law Firm, P.C. - Family lawyers and Divorce Attorneys. |
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| October 26, 2009 |
| Texas Pre-Marital or Prenuptial Agreement |
| Posted By Elias Lorenzana |
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In Texas pre-marital or pre-nuptial agreements are enforceable so long as it is in writing and is signed by both parties. The agreement is enforceable even though without consideration, unlike a deed where consideration is necessary. Under Section 4.001 of the Texas Family Code, a 'Premarital Agreement" is a written agreement between prospective spouses in contemplation of marriage and is effective upon marriage.
The parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
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