Prop Management

Question 1

Sole-management of CP

Answer 1

-prop a spouse would have owned had the spouse not been married (typically spouse’s wages and income from a spouses’s sep prop)

Question 2

joint management CP

Answer 2

-Sole-management prop that has been commingled with other prop
-requires both spouses to consent to the transfer or the transfer is void
EX: husband alone can’t transfer real estate

Question 3

management agreement

Answer 3

• most MAs include a provision for management of joint management CP
• each spouse has power to manage his or her own Sp and sole mang CP under statute with or without an agreement
• spouses will often enter into a management agreement unknowingly (Ex fine print on a joint bank account)

Question 4

K Liability

Answer 4

• when only one spouse incurred the debt, the K creditor can reach that person’s
  1) sole-management CP;
  2) joint management Cp; and
  3) Sep prop

creditor cannot reach CP subject to sole management of other spouse

Question 5

Tort Liability

Answer 5

• Tort judgement creditor can reach:
  1) All of tortfeasor’s Sep prop
  2) all of tortfeasor’s sole-management CP
  3) All of tortfeasor’s joint management CP AND
  4) all the other spouses’s sole-management CP (K can’t reach this one)

Question 6

Personal Liability After Marriage

Answer 6

• the non-signing spouse is not personally liable for the debt
• however the creditor may collect the judgment from joint management CP that was awarded during the divorce
• applies to both K and Tort liab

Question 7

Prop Division Upon Divorce

Answer 7

• CP is divided in a manner that is just and right having due regard for the spouses and their children
• All SP must be returned to the spouse who owns the Sep estate

Question 8

just and right division

Answer 8

• courts can unequally divide the CP in a way that the court deems to be just and right
• factors relate primarily relate to earning capacity
• Factors:
• -business opps
• -education level
• -good health and
• -impact of giving up a career for domestic purposes (raising kids, etc)
• can also consider the size of the sep estate
• other factors:
• –length of the marriage and age of parties
• can also consider which parent will have primary possession of any children of the marriage if it impacts the part’s earning capacity

Question 9

Spousal maintenance

Answer 9

• no alimony in TX

- will enforce alimony judgments from another state

Question 10

Statutory spousal maintenance

Answer 10

To qualify for spousal maintenance, must be unable to be self-sufficient through prop distribution, including SP, AND meet one of the following:

1) payor has been convicted of family violence and deferred
2) spouse is unable to support himself or herself because of an incapacitating physical and mental disabiliies
3) spouse is the custodian of a child and the child has an incapacitating physical or mental disability and
4) marriage has been 10 years or longer

Factors justifying a court to use its equitable powers to grant some form of spousal maintenance

primary factor- is each spouse’s ability to meet his or her minimum reasonable needs

Question 11

modification of spousal maintenance

Answer 11

• can be modified upon a showing a material and substantial change of circumstances
• can be modified downward, but not cannot be modified upward

Question 12

gifts of CP

Answer 12

• a spouse’s unreasonable gift of CP during the marriage is considered a fraudulent transfer
• such a gift can be reconstituted back into the C estate
• can go into a constructive trust

Question 13

factors to determine if gift reasonable

Answer 13

1) how much was given
2) who whom it was given and
3) how much was left after the gift

Question 14

process for reconstitution

Answer 14

1) treat the money as though it is still in the C estate and
2) allocate the amount of the gift to the gifting spouse as a portion of the prop division

innocent spouse can only recover against the 3P transferee when there is insufficient CP to reimburse the innocent spouse