Divorce: What is separate property and what is community property?
Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate. Inception of title occurs when a party first has a right of claim to the property.
Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.
In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse. In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property. The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character. This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.
There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.
Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.
The Texas Family Code defines community property as follows: “community property consists of the property, other than separate property, acquired by either spouse during marriage.”
Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence. Clear and convincing evidence is defined as that 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. If property cannot be proved to be separate property, then it is deemed to be community property.
The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.
A Child’s Testimony and the Law
The Texas Family Code provides for the child to have a voice in the Courtroom. The “voice” appears in many forms and in many places in the Texas Family Code.
Texas Family Code Section 153.008 allows a child to file his/her preference with the Court, if the child is 12 years of age or older. This statute infers that the child’s preference is binding if the Court approves the designation. However, the statute is absent any coercive language. Many argue that the age of 12 is too young or too immature to understand the impact of a preference. “12” is not a magical number. The statute also does not state that the Court must make a determination upon the executed preference.
Although one can view the filing of a preference as a “voice” of the child, many litigants view the filing as a starting place, just a request of the child. The same child who may sign a preference for one parent having the right to determine he said primary residence, may also prefer to live with the other parent. The right to determine the primary residence of the child is not necessarily the right to have primary physical possession – or is it?
The code continually strives to be gender neutral and avoid the use of the term: physical custody. The term “primary physical custody” is not contained in the statute, nor is there any language stating where the child lives or resides. Each parent gets possession for a certain period of time. Yet, no where does the code state “I live with mom/dad.”
Current law also states that a child may be a witness. The Code makes certain that family law will be conducted as other civil cases. Texas Family Code Section 104.002 gives specific rules for admission of a statement of a child who is under 12 years of age, and in cases that involve abuse. The idea is that the statement of the child will be pre-recorded and not simply a deposition. The statute is designated to give some comfort to the child in an atmosphere that may allow that abused child to feel safe. It is clear that 104.002 is designed for cases dealing with abuse only, as it has “exceptions” to what would otherwise be testimony under simple cross examination. The statute applies to children who are under the age of twelve years, with the idea that the statements are not elicited for purpose of establishing a preference, but for the purpose of establishing fact.
Section 153.009 allows an in chamber interview with the child. In a non-jury trial or at a hearing, on the application of a party, the amicus attorney or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
In a non-jury trial or at a hearing on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access or any other issue in the suit affecting the parent-child relationship. Interviewing the child does not diminish the discretion or the court in determining the best interest of the child. In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict. In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview. On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made with the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
Under current law, the interview of a child in chambers is limited to a non-jury case and does not have any place in a jury trial. However, the statute is clear that the interview can lead to much more information for the Court than simply questioning the child’s wishes as to conservatorship. There is very little case law to guide the practitioner on this point.
There is nothing in the Family Code that precludes a child from testifying in a deposition. The use of deposition testimony may be the best approach to obtaining a child’s testimony in a jury trial. The parties may even agree to take the deposition at a place other than the law office, allowing a less hostile environment.
The use of pictures and family videos is another way to get a child’s voice heard.
BEWARE: Social Networking Sites and the Law
Social networking sites originated in the mid-1990’s, but only recently began to expand across the web. Two of the largest social networking sites are MySpace (with over 118 million members) and Facebook (with over 120 million members).
The concept of social networking is easy enough. You begin by filling out a profile, then you look for people you know. When you find someone, you click to add him or her as a friend. Once this is done, you can see who your friends know, who your friends’ friends know, and so on. Social networking is a wonderful avenue for connecting with persons across the globe, but must be done with caution. Keep in mind, pictures, comments, and other information placed on your site may be accessed in any number of ways and may upon proper predicate be used against you in litigation.
Family law practitioners can uncover a wealth of information using social networking sites. Many firms are now making it routine to perform MySpace, Facebook and Match.com searches to see if they can obtain useful information on the opposing party, witnesses, or experts. Such diligence has paid off in some cases. In one case in particular, pictures were discovered of a wife’s sexually explicit boasts on her boyfriend’s MySpace page. The evidence obtained assisted lawyers in securing child custody for the husband. In another case, an attorney was able to undermine an opposing spouse’s credibility when she confronted him with his MySpace page describing him as “single and looking.” While yet another case was won because a husband presented himself as “divorced” and gave a long description of the type of woman he wanted to meet. Information obtained from these sites can be very useful when counsel is trying to provide proof of a spouse’s infidelity. Therefore, is important to carefully and periodically monitor what you place on your social networking site.
Social network evidence may in most cases also be used in child custody cases. Pictures of a parent in various compromising situations while a child or children are in the parent’s custody can present a major problem in a custody lawsuit. Partying, drinking, and negative statements about children used on social networking sites can be offered as evidence in Court. Parents should use caution when placing pictures and other information on their social networking site.
Keep in mind that your employer can access your social networking site. In one case, a partner in one of Dallas’s larger law firms used MySpace and Facebook to uncover details of a client’s former employee and her plans to circumvent a non-compete agreement.
Social networking has also been used in sexual harassment cases. In Houston, Texas, a plaintiff was portrayed as a modest, innocent “wannabe nun.” The opposing counsel found a MySpace page that painted a very different picture of a plaintiff, with numerous photos of her in scanty or provocative attire and engaged in suggestive horseplay at bars and with friends.
Evidence obtained from social networking sites has been used in personal injury and in criminal cases. Attorneys are running cyber checks on jury pools. Many firms are running cyber searches on new clients, witnesses, opposing parties and experts.
In the ever growing and expanding world of cyberspace, it is becoming increasingly important that you inform your counsel of any and all internet usage, sites and blogs which you have joined or participated in so that they may represent you and be properly prepared.
Bitter Truths are Painful but Help Children Recover
The transition process for a child in a divorce is a difficult one which can result in acceptance, growth and renewal or long term resentments and unrealistic expectations.
It is this writer’s belief that the most heinous, destructive event that can occur in a divorce process is the use of the children by either spouse to support their own emotional needs or to seek advantage in the process through their children.
If the divorce is accepted and inevitable, every child deserves to know bluntly and directly where they stand. The exact approach a parent should take with their children will depend on the particular nuclear family, the life belief systems of the family and the relative maturity of each child. At some point, even with young children, every child has a right to know that mom and dad are getting a divorce, will never live together again, do not want to be married, and, if indicated, do not love each other anymore. This brutal truth inevitably will result in acting out, crying, assessment of blame, and sometimes pleading for a different result. Frequently, there is a temporary drop in grade levels, achievement scores and, in the teenage years, disrespect, substance experimentation and/or abuse and authority issues with teachers, coaches or other mentors which have not occurred prior to the separation. I believe that with honest direct knowledge, regardless of the pain, acting out and emotional injury, the children are at least standing on reality, firmly on the ground, and have a reference with other children, peer groups, and friends who on many occasions have been through the same thing. They can express their feelings directly to their friends and peers. They can converse with authority figures or others directly about the truth of the situation and can commence their new lives based on truths and not fantasy.
Alternatively, the most destructive approach a female or male may take with their children is to offer denial or false explanations such as “my mom and daddy are not going to live together for a while, but they may get back together some day,” or “mom and dad love each other, things are not working out right now and we will just have to see.” In the short term, this approach probably is less emotionally upsetting and easier for the parents and the children. In the long run, it can be catastrophic as the children of the relationship are standing in quicksand and falsehoods which give their children no base of reference among their peers at school, church, clubs, etc. They have nothing they can discuss or share with their peers because their parents are “not married” and are “not divorced.” They may become confounded, and this writer believes the result may be long-term character issues and other disorders which may be avoided if the children are allowed to go through their own grief reaction and start new lives based on truth rather than fanciful false hopes.
It is absolutely critical that each spouse never demean the self-esteem of the other spouse to their children or to other adults in front of their children. If dad is a drunk and a mother tells her eight year old son this is the “reason” for the divorce, then every time that eight year old boy looks in the mirror he sees a drunk. If a father tells a daughter that a divorce had to occur because of the mother’s new relationship with another man, then every time that young girl looks in the mirror she sees a whore. Children will internalize these assertions because regardless of whether the assertions are right or wrong, they are being made by people who are their parents, advisors and whose behavior they model. Rest assured that a frequent dead-beat father or mother is infinitely better than no father or mother at all. Additionally, it has been this attorney’s experience that using the children to forge a position in a divorce inevitably back-fires before the judge and/or jury and, over the long-haul as the children mature into adulthood, they will resent the self-degradation of the other spouse and hold it against the spouse who tried to manipulate the child for the rest of their lives.
Once a direct, unambiguous, concise, and sometimes brutally honest statement is made to the children as to what their future will be, the best emotional results for the children appear to come from parents who thereafter remain silent on the topic. Children frequently are dealing with adolescence, puberty, early religious beliefs, adaptation to sexual urges that are normal and hormonal, and every other issue all children deal with as they mature and grow. The last thing on earth minor children need in this contentious environment is to become a go-between message carrier or spy against a parent who is someone they love and who they follow as a role model, during a terrible period of time in their life when their own grief reaction is just as hard and painful as that of the parents going through the divorce.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
