Read the summary and the most important questions on (6) TX Family Law

• Final Review

  This is a preview. There are 24 more flashcards available for chapter 26/07/2017
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• Overcoming CP Presumption

  Spousing claiming asset is SP must establish that it is SP by C+C Ev. Testimony alone cannot overcome the presumption, need some additional evidence.

• Division of Community Estate: Standard

  Trial court should exercise its discretion to make a JUST + RIGHT DIVISION of the community estate, having due regard for the rights of each party and any children of the marriage.
  

  •  A 50/50 division is not required. 
    
  • Trial court can consider myriad factors in making a J+R Division. 

• How can separate property be converted to community property.

  By an agreement that is (1) in writing and (2) signed by both spouses.

• Commingling of CP and SP--Tracing

  
  The community presumption can be overcome by tracing. The burden of proof is on the party seeking to establish the asset as SP. In commingled bank account cases, there is a presumption that community funds were withdrawn first (before separate funds). 

• Sole Management CP

  During marriage, each spouse has sole management + control over the property that they would have owned if they were singled (personal income).

• Effect of Characterization as CP or SP: Divorce

  In property settlement attendant to divorce, starting point is that (1) each spouse is entitled to his SP free of any claim by the other spouse and (2) each spouse is entitled to his 1/2 share of all CP assets. But, court may order a division of the community estate in a manner that it deems just and right.

• Effect of Characterization as CP or SP: Death of Spouse--(a) Intestate Succession

  Husband (H) predeceases wife (W)
  
  

  • SP: (1) Separate real property: W inherits LE in an undivided 1/3; children get remainder as to 1/3 and outright ownership of the other 2/3s; (2) Separate personal property: H inherits 1/3; children inherit 2/3s. 

  
  

  • CP: (A) If all of H's children are shared with H: W takes entire community estate; (B) If any of H's children are from another marriage: W retains her 1/2 community share; H's 1/2 share in CP passes to his children evenly. 

• Effect of Characterization as CP or SP: Death of Spouse--(b) Testamentary Disposition (Will)

  • SP: Each spouse has unrestricted power over disposition of his SP (surviving spouse has no claim). 

  
  

  • CP: Surviving spouse keeps his 1/2 share of community assets; decedent spouse's 1/2 share passes according to the will. 

• Lifetime Gifts of CP

  If the gift was CP, there are 2 bases upon which the surviving spouse can seek to have the gift set aside: (A) gift was made "in fraud of the spouse's rights" or (b) the transfer was "illusory".

• Fraud on the Spouse Doctrine (gift made "in fraud of spouse's rights")

  One spouse may make reasonable gifts of CP without the other spouse's consent, but excessive or capricious gifts can be set aside as constructive fraud of the other spouse's CP rights. Factors to determine if fraudulent: (1) relation of the donee to the donor spouse + (2) Size of the gift in relation to the size of the community estate.