COMMUNITY PROPERTY Flashcards
This property consists of any property (real or person) other than separate property acquired by a married person during the marriage.
What is the general presumption of community property?
The clear and convincing standard is required to meet this standard of proof.
What standard is required to overcome the general presumption of community property?
This type of property is real and personal property that is 1) owned or claimed by the spouse before the marriage; or 2) property acquired during the marriage by gift, bequest, devise, or descent, or 3) a recovery for personal injuries suffered during, rather than before marriage (e.g., except for loss of wages or income)
*** What is the definition of separate property?
Minority rule (followed in TX), although most states follow majority rule (source of funds), is the inception of title rule where the characterization of property is determined as of its initial acquisition or vesting of title.
*** What rule does TX follow to classify property as real or separate property?
One marital estate may seek reimbursement from another marital estate for the following: 1) Payment for unsecured liabilities: 2) Compensation by spouse’s business entity; 3) Reduction in principle amount of certain debts; 4) Refinancing principle amount of debt; 5)
Capital Improvements
** How is a claim for reimbursement from one martial estate by another marital estate treated?
In TX, this is referred to as a community property partition or exchange agreement.
** What is Transmutation of Assets?
A spouse holds this property on behalf of both spouses during the marriage. Examples include: personal earnings, revenue from separate property, recoveries for personal injuries, revenues or royalties from property under spouse’s sole management.
*** What is sole management of community property (SCMP)?
Both spouses have joint management, control and disposition unless otherwise provided by a written POA or other agreement.
*** What is joint management community property?
Neither spouse may convey, sell, or encumber their homestead property without the other’s spouse’s joinder (e.g,. by signature) unless as provided by TX law.
*** What is the homestead property general joinder rule?
Two exceptions: 1) A spouse may convey, sell, encumber his/her separate property without the joinder of the non-owner spouse who has been “judicially declared incapacitated” ; 2) The competent spouse may convey, sell, or encumber the community property that is both spouses’ homestead without the joinder of the other spouse who “has been judicially declared incapacitate.”
*** What are the two exceptions to the homestead property general joinder rule?
A house or other dwelling, used as an individual’s residence that is generally protected from a forced sale, which helps prevent indebted people from losing their homes.
** What is the definition of a homestead?
Examples of permissible encumbrances: 1) purchase money loans; 2) property taxes due; work and material used to make improvements on property; federal tax lien; 3) reverse mortgages
** What are examples of permissible encumbrances that can be property fixed to a homestead property?
The general rule for division of property that courts used to determine an equitable outcome.
*** What is the “just and right” division of property rule?
Factors for consideration in dividing a martial estate: 1) capacity and abilities of the spouses, business opportunities, education, disparity in income and earning capacities.
** What are the circumstantial factors when making a ‘just and right’ division of the martial estate?
