MARITAL PROPERTY - COMMUNITY VS. SEPARATE PROPERTY
Under Texas law, separate property is the property owned before marriage as well as property
acquired during marriage through gift, devise, and descent. TEX. FAM. CODE ANN.
§ 3.001 (West 2006). All other property that is not separate property is community property. Id.
§ 3.002. The Texas Family Code creates a presumption that property owned by either spouse
during marriage is community property. Id. § 3.003. The Texas Constitution allows spouses, if
agreed in writing, to convert all or part of their separate property into the spouses’ community
property. TEX. CONST. art. XVI, §15.
When a trial court divides the community estate, it must do so in a manner it deems just and
right. TEX. FAM. CODE ANN. § 7.001 (West 2006). To aid in its decision, the trial court may
consider many different factors, including: (1) the spouses’ capacities and abilities; (2) benefits
which the party not at fault would have derived from continuation of the marriage; (3) education;
(4) business opportunities; (5) relative physical conditions; (6) relative financial condition and
obligations; (7) disparity of ages; (8) size of separate estates; (9) the nature of the property; and
(10) disparity in the spouses’ income or earning capacity. Murff v. Murff, 615 S.W.2d 696, 699
(Tex. 1981). With these basic principles as guidance, we review the trial court’s findings of fact.
Marital Property Agreements
Spouses may agree to partition and exchange between themselves all or part of their community
property, then existing or to be acquired, at any time during the marriage. Tex. Const. art. XVI, §
15; Tex. Fam. Code Ann. § 4.102 (Vernon 2006). A marital property agreement may be set aside
if the party against whom enforcement is sought proves that
(1) the party did not sign the agreement voluntarily; or
(2) the agreement was unconscionable when it was signed and, before she executed the
agreement, that party
(A) was not provided a fair and reasonable disclosure of the property or financial obligations
of the other party;
(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the property
or financial obligations of the other party beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, adequate knowledge of the property or
financial obligations of the other party.
Tex. Fam. Code Ann. § 4.105 (Vernon 2006). Whether the agreement is unconscionable “shall
be decided by the court as a matter of law.” Id. § 4.105(b). Additionally, if the marital property
agreement was executed prior to September 1, 1993, as here, common-law defenses are also
available to defeat enforcement of the agreement. See Act of Apr. 30, 1993, 73rd Leg., R.S., ch.
136, § 3, 1993 Tex. Gen. Laws 283, 283 (subsequent amendments omitted). See Footnote 3: The
only difference between the current law and the law in effect when the parties signed the marital agreement is
the availability of common- law defenses. See Act of June 1, 1987, 70th Leg, R.S., ch. 678, § 1, 1987 Tex. Gen.
Laws 2530, 2531 (subsequent amendments omitted) (current version at Tex. Fam. Code Ann. § 4.105). For that
reason, we cite to the current statute.
A marital property agreement is not enforceable if the party against whom enforcement is sought
proves she did not sign the agreement voluntarily. Tex. Fam. Code Ann. § 4.105. The statute
does not define “voluntarily,” and Texas courts have generally construed it to mean an action
that is taken intentionally or by the free exercise of one's will. See Sheshunoff v. Sheshunoff, 172
S.W.3d 686, 696 (Tex. App.-Austin 2005, pet. denied); see also Cooper v. Cochran, No. 05-07-
00760-CV, 2009 WL 944394, at *6 (Tex. App.-Dallas Apr. 9, 2009, no pet. h.) (describing duress
and undue influence as causing a party to do something she would not otherwise have done);
Matelski v. Matelski, 840 S.W.2d 124, 128-29 (Tex. App.-Fort Worth 1992, no writ) (equating
duress with involuntary). Generally, whether a party executed an agreement voluntarily or as the
result of a state of duress or coercion is a question of fact dependent upon all the circumstances
and the mental effect on the party claiming involuntary execution. Matthews v. Matthews, 725 S.
W.2d 275, 278-79 (Tex. App.-Houston [1st Dist.]1986, writ ref'd n.r.e.); Sanders v. Republic Nat'l
Bank of Dallas, 389 S.W.2d 551, 554 (Tex. Civ. App.-Tyler 1965, no writ).