law-divorce-reimbursement-claim | separate and community property | community property presumption in
divorce suit | appellate decisions on disputed property division in divorce suits |
The statute providing for claims based on economic contribution has recently been repealed. Tex. Fam.
Code Ann. § 3.403, repealed by Act of May 29, 2009, 81st Leg., R.S., ch. 768, § 11(3), 2009 Tex. Gen.
Laws 1950, 1953 (eff. Sept. 1, 2009)
SEPARATE VS. COMMUNITY PROPERTY
- COMMUNITY PROPERTY PRESUMPTION
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 CLAIM AGAINST ANOTHER MARITAL ESTATE
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.
A party may bring a claim for reimbursement of payments by one marital estate to
satisfy unsecured liabilities of another marital estate. Tex. Fam. Code Ann. § 3.408(b)(1)
(Vernon 2007). “The right of reimbursement is not an interest in property or an enforceable debt, per se,
but an equitable right which arises upon dissolution of the marriage . . . ." Vallone, 644 S.W.2d at 458-59.
“[T]he payment by one marital estate of the debt of another creates a prima facie right of reimbursement."
Penick v. Penick, 783 S.W.2d 194, 196 (Tex. 1988).
Knight v. Knight (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Hedges)
(divorce property division, reimbursement claim)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00424-CV Monica Faye Knight v. Bobby Wayne Knight
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York
At trial, Bobby testified that he took out a loan against his truck to pay off his separate property judgment
debt. He admitted that although Monica had not contributed to the debt, he used community property
funds to extinguish it. In the decree and its findings and conclusions, the court characterized the truck as
part of the community estate subject to division but made no mention of the community funds used to pay
off the debt.
The undisputed evidence shows that Bobby's separate property judgment was paid by community property
funds. We therefore conclude that the trial court's refusal to reimburse the community for one-half of the
community funds used to pay Bobby's separate property judgment debt was unsupported by the evidence
and an abuse of discretion. See Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.-Houston [14th Dist.]
1996, no pet.).
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