law-community-property-presumption | separate property vs. community marital property | separate-
property-in-divorce-inception-of-title-rule | community property presumption in suit for divorce |
Houston divorce marital property division case law | reimbursement claim against community or
separate property |
HOUSTON CASE LAW ON COMMUNITY VS. SEPARATE PROPERTY IN
DIVORCE
The Texas Family Code defines separate property as that property owned by a spouse before
marriage, acquired during the marriage by gift, devise, or descent, or as a recovery for personal
injuries sustained during the marriage. Tex. Fam. Code Ann. § 3.001 (Vernon 2006). In contrast,
community property consists of the property, other than separate property, acquired by either spouse
during marriage. Tex. Fam. Code Ann. § 3.002 (Vernon 2006). All property possessed by either
spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code
Ann. § 3.003(a) (Vernon 2006).
To overcome the community-property presumption, a spouse claiming assets as separate
property is required to establish their separate character, not merely by a preponderance of the
evidence, but by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b); Stavinoha, 126 S.
W.3d at 607. Clear and convincing evidence means the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established. Stavinoha, 126 S.W.3d at 607.
The party seeking to rebut the community presumption must generally trace and clearly identify
property claimed as separate property. McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973).
Mere testimony that the property was purchased with separate funds, without any tracing of the funds,
is generally insufficient to rebut the presumption. McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex.
App.—Houston [1st Dist.] 1995, writ denied).
Reimbursement is an equitable right that arises when the funds or assets of one estate are used
to benefit and enhance another estate without itself receiving some benefit. Vallone v. Vallone, 644 S.
W.2d 455, 458–59 (Tex. 1982). The party claiming the right of reimbursement has the burden of
pleading and proving that the expenditures were made and that they are reimbursable. Id. at 459.
Reimbursement is not available as a matter of law but lies within the discretion of the court. Id. The
discretion to be exercised in evaluating a claim for reimbursement is equally as broad as the
discretion exercised in making a just and right division of the community estate. Zieba, 928 S.W.2d at
787.
Jensen v. Jensen (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Brown) (divorce property division,
foreign spouse, international aspects of family/divorce law)((divorce property division affirmed)
(community vs. separate property, reimbursement claim)
Appellant Tammy C. Jensen appeals the property division in a divorce case. Tammy contends that the evidence does
not support several of the trial court’s findings of fact and that these findings resulted in a manifestly unjust and unfair
property division. She also contends that the trial court abused its discretion by awarding Barry Jensen one-half of the
shares of stock from one of her accounts while allocating all of the associated debt to her and by denying her claim for
reimbursement of her separate funds used for the down payment on their residence. We affirm.
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00221-CV Tammy C. Jensen v. Barry Dale Jensen
Appeal from 328th District Court of Fort Bend County
Trial Court Judge: Ronald R. Pope
The evidence concerning the separate character of the funds removed from the couple’s joint
account to repay the loan for the down payment on their home was not clearly demonstrated. To the
extent that Schlumberger account funds may have been used to repay the loan, Tammy produced no
evidence to segregate what portion of those funds belonged to her separate estate as opposed to
the community estate. Tammy also conceded that at least $36,000 of the money in her Hansard
account was community money. Further, the funds Tammy contends were used to repay the loan
were first deposited into the parties’ joint checking account, further commingling them, and Tammy did
not sufficiently trace them. See McKinley, 496 S.W.2d at 543–44. Because Tammy failed to
demonstrate by clear and convincing evidence that she repaid the loan for the down payment on the
parties’ home with her separate funds, the trial court did not abuse its discretion in concluding that
she failed to offer sufficient evidence to support her claim for reimbursement. We overrule Tammy’s
fourth issue.
“Interest and dividends paid on investments, whether the investments are separate property or not,
are income under Texas law and are generally community property.” Fischer-Stoker v. Stoker, 174 S.
W.3d 272, 279 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Alsenz v. Alsenz, 101 S.W.3d
648, 653 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)).
OTHER APPELLATE CASES
Kite v. Kite (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Alcala)(spouse's separate property in
divorce determined by inception of title rule) (spouse's separate property may not be awarded to the
other spouse in division of community property)
We hold the trial court erred in divesting Michael of his separate property. This necessitates remand for a new division
of the community estate. We reverse the portion of the final decree of divorce that divides the marital estate. We
remand for a new division of the community estate and other appropriate proceedings. We affirm the final decree of
divorce in all other aspects.
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND
REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00643-CV Michael David Kite v. Kendra Senja Kite
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York
Baros v. Baros (Tex.App. - Houston [14th Dist.] Feb. 25, 2010)(per curiam)
(divorce property dispute)(no community property accumulated during short marriage)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00038-CV Waymond Troy Baros v. Melissa Baros
Appeal from County Court at Law No 1 of Montgomery County
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