Community Property in a Nutshell
Author:
Carrillo, Jo
Edition:
4th
Copyright Date:
2018
18 chapters
have results for family law texas
Chapter 10. Death 42 results (showing 5 best matches)
- The right of the surviving spouse to family allowance is a family protection. It is a continuation of the obligation of support owed by one spouse to the other. The family allowance also alleviates economic difficulties caused by the termination of the marriage by death. The concept of exempt property and homestead, a family protection, was initiated in Texas, as discussed in Chapter 5. The homestead idea has been adopted in one form or another by almost all of the states.
- The concepts of the homestead right, discussed in Chapter 5, and of exempt personal property originated in Texas. Although designed primarily to protect a family farm or home, and certain minimum amounts of clothing, furnishings and work equipment from execution of creditors, the protection has been extended after the death of a spouse or parent. The extension is logical because otherwise death would terminate legal protection given to family members when they may most need it. The exemption from creditors has also been applied to work as an exemption when a decedent dies with a valid will. Thus in Texas, as in many jurisdictions, the spouse or the children of the decedent claim their homestead and other family protections before creditors can reach the decedent’s property. A family allowance may also be ordered paid, as a preferred item from the decedent’s estate, again prior to creditors.
- The Texas Probate Code had distinguished between personalty and realty. Its replacement, the Texas Estates Code, makes substantive changes in Texas law that may alter where the distinction had previously been drawn.
- In some states, family protections are or may be paid before the debts of creditors are paid. See for example Texas, discussed below.
- On January 1, 2014, the Texas Probate Code, which had been in effect since 1956, was repealed by the Texas Estates Code (2013 Tex. Sess.Law Serv.Ch. 1136 (H.B. 2912) (VERNON’S), effective January 1, 2014.
- Open Chapter
Chapter 1. Preliminary Matters 36 results (showing 5 best matches)
- Texas, an independent republic from 1836, joined the Union on December 29, 1845. An original Texas Constitution of 1869 was formed but it was replaced in its entirety with the Texas Constitution of 1876, which remains the organic law of Texas today. Texas was formerly a part of Mexico and subject to the laws of Spain. When the state became a Republic and later joined the Union it not only carried over a Spanish-Mexican heritage of the community property system, it enshrined that system in the Constitution of 1876, thus placing community property above the reach of any particular legislature. Part of the legal history of Texas is the low regard in which decisions of the post-Civil War Reconstruction period courts are held. For more on the Texas community property system, see
- New Mexico, consisted partly of land from the Republic of Texas and partly of land acquired by the Treaty of Guadalupe Hidalgo, and it included the present state of Arizona until 1863. New Mexico’s borders between Texas and California were subject to change from time to time. Historians differ as to whether Spanish to Mexican to New Mexican community property rules continue in an unbroken chain, although case law holds that it does. In 1876, the common law was adopted in the New Mexico Territory and the civil law was repealed, except where adopted by statutes or required by Treaty. Otherwise, a military code (the Kearny Code) went into effect until 1907. When the New Mexico Act was passed, it largely adopted California community property statutes. In 1912, when New Mexico become a state, its courts began to look to the law of Spain and Mexico to interpret the community property system, thus officially recognizing the civil law origin of the New Mexico system.
- A lawful marriage comes into existence at the time that statutory formalities are met by a couple who is domiciled in the state. Among the U.S. community property states, informal marriage (sometimes mistakenly called “common law marriage”) is only permitted in the state of Texas.
- Within the U.S., ganancial systems divide along the line of how permeable they are to civil and common law marital property concepts. Louisiana is closer to its civil law origins than are the other U.S. community property states. California has strong ties to the common law tradition, brought by the ’49ers, and thus it actively used and still uses the case law method to define, interpret, and amend its family law statutes. New Mexico relied on California statutes in setting up its community property statutes, but then looked to the law of Spain and Mexico to define and interpret those statutes.
- From at least since 1865, the community property system was recognized by the Arizona Territory. Since statehood, Arizona has tended to follow decisions of California and Texas, with some early leanings towards the laws of Washington, which itself has looked to California. (John S. Goff ed.) confirms that Arizona delegates voted to indefinitely postpone a restatement of community property law in the constitution because they regarded community property as purely legislative in character.
- Open Chapter
Chapter 3. Community Property 68 results (showing 5 best matches)
- Texas follows the civil law rule on separate property rents, issues, and profits. During marriage the community is entitled to any income derived from a separate property asset. Texas does not explain the rule by reference to usufruct, at least not in its statutes or recent case law.
- Texas originated the homestead concept. Homestead property is a community property title. And because state formalities ensure that joint tenancy is intentionally, not accidentally, used, there is little need for a family code joint form title community property presumption.
- A minority of U.S. community property states (Idaho, Louisiana, Texas and Wisconsin) follow the civil law approach on separate property rents, issues, and profits. The civil law approach holds that separate property income streams are characterized as community property during the marriage, historically by usufruct. In minority-view states, the parties can reach a contrary agreement as to separate property rents, issues, and profits, but their agreement must expressly transmute the income stream of the underlying separate property asset.
- This clause creates a new presumption in Texas (which, being a civil rule state, would otherwise deem the income from separate property to be community property if received during marriage). The new presumption is that a gift from one spouse to the other of separate property is presumed to be a gift of the future income of that property as well. This provision was probably aimed at federal estate tax questions raised by
- Louisiana and Texas also have enacted a possession-based general community property presumption. A possession-based presumption considers only the mere fact of possession at the end of the marriage. Because proof of acquisition is more precise an indicator than proof of possession, Texas raises the standard of proof to clear and convincing evidence for its possession-based presumption. See
- Open Chapter
Chapter 5. Joint Tenancy Meets Community Property 66 results (showing 5 best matches)
- The Texas homestead, discussed below, has been likened to a TBE because it (too) requires five unities. The Texas homestead is not a common law interest so much as it is a distinct interest created by the Texas Constitution.
- Wisconsin, by statute, authorizes something similar to the Texas homestead right. Wisconsin calls its family protection survivorship marital property.
- Holding title in JTWROS does not appear to be as commonly used in Texas as in other community property states (except Louisiana, which does not permit joint tenancies). Perhaps this is because Texas is the birthplace of the “homestead” concept, discussed in Section A.1 above.
- Nevertheless, if the married persons insist on placing community property into a JTWROS, Texas permits the use of a valid
- Other states, like California, do not enshrine a homestead right in the state constitution. Instead, married couples can opt into one of the two available right of survivorship title forms (the JTWROS or the CPRWOS) if they want a titled asset to pass immediately on death to a spouse. California is a lien theory state, so the surviving spouse must assume any purchase money loans and taxes owed on exempt property, but otherwise the surviving spouse is statutorily protected from the decedent spouse’s probate creditors because they cannot reach non-probate property, meaning property that passes by survivorship. All of the community property states employ probate code family protections that could be labeled homestead rights; however, most state protections are statutory, not constitutional (as in Texas).
- Open Chapter
Chapter 2. Contractual Modification 72 results (showing 5 best matches)
- Texas follows the civil law rule that characterizes the rents, issues, and profits of separate property as community property during the continuance of the marriage. The Texas approach can be inferred from Tex. Const. Art. XVI § 15.
- All transmutations are potentially subject to the laws governing fraudulent transfers. Arizona (1989), California (1990), Idaho (1987), Nevada (1987), New Mexico (1989), Texas (1987), Washington (1987), and Wisconsin (1987) adopted the Uniform Fraudulent Transfer Act (the UFTA for short); Louisiana is the sole holdout.
- Texas adopted the UPAA 1983 effective April 17, 1997. The Texas provisions appear at V.T.C.A.Fam.Code §§ 4.001–4.010. A premarital agreement must be in writing and signed by both prospective spouses; consideration is not necessary. V.T.C.A.Fam.Code § 4.002.
- A transmutation agreement, to be valid, must comply with state statutory formalities, be the result of voluntarily action, and be based upon disclosure. State formalities are found in the state family code or in case law.
- § 4.003(4). Like California, Texas has omitted the UPAA language that grants a court the power to modify an unconscionable spousal support provision at enforcement. The omission is significant because
- Open Chapter
Chapter 12. Federal Problems 61 results (showing 5 best matches)
- Commentators generally agree that the California court used a common law analysis in reaching its result and that Texas was truer, by comparison, to civil law tradition. Some commentators have called the California rule a mistake. But even if it is, it is not likely that the California rule will be reversed in furtherance of theoretical civil law purity. As we have seen, a majority of states follow the California approach. Moreover, the direction of change among those states that do not follow the American rule is nevertheless in the California direction. In 2013, Texas voters rejected a proposal to amend the Texas Constitution in favor of adopting the American approach.
- California, Nevada and Texas have state constitutional provisions that define separate property. The constitutional provisions have served as
- , supra, the California court based its decision upon what it called the fixed meaning in the common law of the term separate property. In
- , supra, marriage remains a state law procedure, as does divorce. Different U.S. community property states allow for different relationship options. All permit licensed marriage. Only Texas permits informal marriage. Likewise, as to divorce, all states require a final judgment of dissolution to terminate a
- 1891 legislative amendment that required a wife’s consent to gifts of community personal property made by the husband to a third party. The amendment was held constitutionally inapplicable to property acquired before the effective date, the rationale being that each spouse had vested rights in community property, and, therefore, it was beyond the power of the legislature to deprive a spouse of his or her vested right without due process of law. California passed a comprehensive Family Code in 1992, effective 1994. The Family Code abrogates much of the prior law as a general matter. Nevertheless there remains a considerable body of case law on whether amendments to the community property laws can be applied retroactively.
- Open Chapter
Chapter 4. Separate Property 54 results (showing 5 best matches)
- To date, Texas follows the civil law ganancial rule of declaring
- Texas has made various shortlived and unsuccessful efforts to transition toward the American rule, which recognizes separate property rents, issues, and profits as separate property. But
- The Texas Supreme Court, construing an identical clause in the Texas Constitution in
- As an aside, the civil law permitted tracing, but only as to
- A spouse owns an unencumbered separate property rental unit. What is the character of the rents received? In a civil law state (Idaho, Louisiana, Texas, and Wisconsin), the rents are community property during the marriage. In an American rule jurisdiction (Arizona, California, Nevada, New Mexico, and Washington) the rents are characterized as separate property during the marriage.
- Open Chapter
Chapter 11. Nonmarital Relationships 34 results (showing 5 best matches)
- claim can be consolidated with an existing family law case, as for example when nonmarital cohabitants marry and then eventually dissolve their marriage. But in the end, a claim is a civil action, not a family court action.
- . Bigamy is a criminal offense in Texas, and an unterminated common-law marriage can form the basis for a bigamy prosecution.
- These are allowances, but they bring home the fact that nonmarried cohabitants are not entitled, by default, to use the family law to resolve their disputes. Contract law, property law (title documents), unjust enrichment, the law of trusts, partnership, quasipartnership and joint venture law must be used instead as theories upon which to govern the division of property between nonmarried cohabitants. In the event of wrongdoing, resulting and constructive trusts can be sought by the wronged party.
- Creditors of nonmarried cohabitants must likewise look to general law rather than to family law (community property) for protection of their rights.
- Texas recognizes informal, or common-law, marriage for different-sex partners upon proof offered in a
- Open Chapter
Chapter 7. Management and Control 35 results (showing 5 best matches)
- Texas is unique for its dual management system. In Texas spouses have sole management, by statutory default, over community property that each would have owned individually had the marriage not existed. If one spouse’s solely managed property becomes commingled with the other spouse’s solely managed community property, dual management becomes the default rule for the commingled
- When joint management and control applies, gifts made by one spouse to a third party can be avoided. Texas retains the civil law fraud test for setting aside a gift by the manager of the community. It also extends the test’s coverage by reliance on the concept of constructive fraud. Additionally, the person who attempts to uphold the gift has the burden to prove that the gift was reasonable under the circumstances in which it was made.
- Dual control, as in the Texas system.
- Specific statutory provisions allow the spouses to agree to a different scheme of management and control in Idaho, Texas, and Wisconsin. In Louisiana a spouse may expressly renounce the right to concur in actions which would otherwise require both spouses to join in the transaction.
- “ . . . the alienation, encumbrance, or lease of community immovables, standing, cut, or fallen timber, furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise, and movables issued or registered as provided by law in the names of the spouses jointly.”
- Open Chapter
Chapter 9. Divorce 33 results (showing 5 best matches)
- California is an equal division state. However, the Family Law court is a court of law and equity with considerable discretion.
- H and W are domiciled in California. They move to Texas and establish a domicile there. H and W leave the California community property system and enter the Texas community property system as of the date of the domicile change.
- Legal separation terminates the community regime in all states. Physical separation terminates it in some states. A final dissolution judgment divides property. Only a court judgment terminates a marriage by changing the parties’ status from married to single. Among the community property states, Texas is alone in permitting informal marriage. No community property state recognizes informal (sometimes mislabeled common law) divorce.
- A deferred sale of the family home.
- An informal separation occurs when one or both parties decide that the marriage is over. States have different rules about when an informal period of separation commences as a matter of law. Some states require proof that one of the spouses moved out of the family residence. Other states admit any evidence that goes toward proving that a separation has occurred.
- Open Chapter
Chapter 8. Liabilities 54 results (showing 5 best matches)
- Texas statutory law leaves the order of marshaling to the discretion of the court.
- Family purpose is determined by timing. Wisconsin presumes that an obligation incurred by one spouse during marriage is undertaken for a family purpose, or in the language of Wis. Stat. § 766.55, reproduced below,
- Two variations reflect how the higher earning spouse, who obtains a statutory benefit as a matter of economics, might also be exposed to greater liability than the other lower earning spouse. The first variation is the ability of a higher earning spouse to bind the property over which he or she would have had control if not married. Typically this category of property is the spouse’s earnings, as in Texas, or separate property rents, issues, and profits. The second variation is illustrated by the following Louisiana provision. Under a
- , the “necessaries” statute, carves out a huge exception for family expenses:
- family. A statement separately signed by the obligated or incurring spouse at or before the time the obligation is incurred stating that the obligation is or will be incurred in the interest of the marriage or the family is conclusive evidence that the obligation to which the statement refers is an obligation in the interest of the marriage or family, except that the existence of that statement does not affect any interspousal right or remedy.
- Open Chapter
Chapter 6. Characterization Problems 80 results (showing 5 best matches)
- The classic civil law approach for credit acquisitions (followed in Arizona, Idaho, Louisiana, Texas, and Washington) is relatively static. Date of inception of title determines character. Reimbursements are determined by proof that a contribution of a different character was made.
- Texas follows the civil law rule on separate property rents issues and profits. This means that income earned by separate property funds is community property during the marriage, as discussed in Chapters 3 and 4. See also Section C, Idaho above.
- Community property funds used to pay for family expenses are regarded as an obligation of support. The family expense presumption deducts family expenses (rents, utilities, food, clothing, interest payments, lifestyle expenses, and so on) from community property funds
- When an asset (like a home) is purchased with borrowed funds, title is taken subject to the mortgage or deed of trust. In cases where contributions to the purchase loan principal payments are of different characters, jurisdictions split on how to handle the purchase. Arizona, Idaho, Washington, Louisiana and Texas follow the civil law inception of the title rule, but reimburse contributions to purchase made of a different character. California, New Mexico, Nevada, and Wisconsin follow the American pro tanto ownership approach.
- “Family expenses” are family expenses paid from the business over the time period in question.
- Open Chapter
Preface to the Fourth Edition 4 results
- offers an updated roadmap to the law of the nine U.S. community property jurisdictions: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. I also include, where relevant, information about Alaska and Tennessee, two states that offer married persons an option to adopt community property by private document.
- The audience for this work is students and state legislators. Students because they will be the lawyers and judges of the future. And state legislators because the community property terrain is ever-changing, and law practice (which is often discretionary and oral) too often contradicts the written rules of legal doctrine and policy. It seems useful, therefore, to provide a handy reference to the written law for state legislators who seek to modernize the legal institutions of marriage and divorce.
- Each chapter is divided into three parts. Part A overviews the chapter topic. Part B details the law. Part C presents specific statutes and cases from each of the nine U.S. community property jurisdictions.
- I wish to thank the University of Michigan Law Library for the hospitable and extended use of its on-site collection. A special thanks to RCV, MCO, LJO, and KBV.
- Open Chapter
Index 58 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Open Chapter
- Publication Date: April 18th, 2018
- ISBN: 9781683286844
- Subject: Family Law
- Series: Nutshells
- Type: Overviews
-
Description:
Summarizes the marital property laws dealing with creation, management and termination of community property in nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). Also includes coverage of community option states (Alaska and Tennessee).
Each chapter presents a legal overview of the chapter topic followed by an analysis of the specific law of each of the nine community property states. Topics include a brief history of community property in the U.S., premarital contracts, transmutations, community property, separate property, characterization, management and control, liabilities, forms of intimate partnership, dissolution, and death.