Exchange Agreement Form In Texas
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Under California law, separate property is property owned prior to marriage, or received during the marriage by gift or inheritance. Community property consists of other property acquired during marriage while domiciled in California.
Under Texas law, spouses can enter into partition or exchange agreements in which one spouse transfers all or part of their present or soon-to-be-acquired community property to the other, thereby transmuting it into the separate property of the receiving spouse.
Code § 4.102. Current with legislation from the 2023 Regular and Special Sessions signed by the Governor as of November 21, 2023. At any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire.
Typically your community property is divided between you and your spouse in a divorce while separate property will not be shared and/or divided. With this in mind, if you and your spouse purchased a home during your marriage, the home will most likely be characterized as community property.
Property acquired during the marriage (outside of the noted exceptions) is considered community property. The spouses can, however, agree to convert (or “transmute”) community property into separate property. In Texas, this is done via a written agreement establishing a partition or exchange between the parties.
23.001. PARTITION. A joint owner or claimant of real property or an interest in real property or a joint owner of personal property may compel a partition of the interest or the property among the joint owners or claimants under this chapter and the Texas Rules of Civil Procedure.
A valid transmutation requires a writing, contained in an express declaration made, joined in, consented to, or accepted by the spouse whose interest is adversely affected. (Family Code section 852(a)).
Texas law provides each co-owner of real property with an absolute right to have their property partitioned through a forced judicial sale. Texas courts are required to partition property even if only one co-owner makes such a request, and the courts have no wiggle room or discretion.
Every co-owner of an interest in the property (no matter how small) must agree in order for a voluntary partition to occur. The remedy when agreement cannot be reached is for one or more of the co-owners to seek a court-ordered division by means of a partition suit.
