Partition And Exchange Agreement With Waiver Of Rights In King
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The exceptions to community property are funds or things that are: Owned by one spouse before the date of marriage. Inherited by one spouse before, during or after the marriage. Gifted to one spouse. Property purchased with separate funds during the marriage.
Even if only one spouse's name is on the deed, any property bought during the marriage is presumed to be community property, unless it was bought with separate property funds. The spouse claiming it as separate property must prove it in court.
A partition agreement does not have to be approved by the court as just and right. In addition to being in writing and signed by both parties, a partition agreement must either specifically reference “partition” or show the parties' intent to convert the property from community property to separate property.
Texas law allows spouses wide latitude in drafting their property agreements. After a marriage, spouses may change community property to separate property and vice-versa.
Everything acquired during a marriage is community property unless a spouse can prove (or the spouses agree) that it is separate property. Separate property is property owned before marriage, or acquired during the marriage as a gift, through inheritance, or as part of a personal injury settlement.
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.
Sec. 4.102. PARTITION OR EXCHANGE OF COMMUNITY PROPERTY. 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.
Legal and Practical Considerations: Legally, both spouses have an equal right to stay in the marital home unless a court decides otherwise. This is because, in Texas, a home bought during the marriage is considered community property, owned equally by both spouses.
In Texas, there is no presumption that each party owns separate property. However, spouses do have equal ownership rights to their respective properties.