By Goodman                                            H.B. No. 1245
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the relationship between separate and community
 1-3     property during a marriage.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. PUBLIC POLICY. In accordance with the duty of the
 1-6     legislature under Section 15, Article XVI, Texas Constitution, to
 1-7     pass laws more clearly defining the rights of spouses in relation
 1-8     to separate and community property, the legislature declares that,
 1-9     under certain circumstances, the economic contributions to the
1-10     value of property during marriage made by one marital estate for
1-11     the benefit of another marital estate create a claim for economic
1-12     contribution for the contributing marital estate in the property of
1-13     the benefited estate as provided by Subchapter E, Chapter 3, Family
1-14     Code.
1-15           SECTION 2. AMENDMENT. Subchapter E, Chapter 3, Family Code,
1-16     is amended to read as follows:
1-17      SUBCHAPTER E.  CLAIMS FOR ECONOMIC CONTRIBUTION AND REIMBURSEMENT
1-18             [EQUITABLE INTEREST OF COMMUNITY ESTATE IN ENHANCED
1-19                         VALUE OF SEPARATE PROPERTY]
1-20           Sec. 3.401.  DEFINITIONS. In this subchapter:
1-21                 (1)  "Claim for economic contribution" means a claim
1-22     made under this subchapter.
1-23                 (2)  "Economic contribution" means the contribution to
1-24     a marital estate described by Section 3.402.
 2-1                 (3)  "Equity" means, with respect to specific property
 2-2     owned by one or more marital estates, the amount computed by
 2-3     subtracting from the present fair market value of the property the
 2-4     amount of a lawful lien specific to the property on the date of
 2-5     dissolution of the marriage, death of a spouse, or disposition of
 2-6     the property.
 2-7                 (4)  "Marital estate" means one of three estates:
 2-8                       (A)  the community property owned by the spouses
 2-9     together and referred to as the community marital estate;
2-10                       (B)  the separate property owned individually by
2-11     the husband and referred to as a separate marital estate; or
2-12                       (C)  the separate property owned individually by
2-13     the wife, also referred to as a separate marital estate.
2-14                 (5)  "Spouse" means a husband, who is a man, or a wife,
2-15     who is a woman.  A member of a civil union or similar relationship
2-16     entered into in another state between persons of the same sex is
2-17     not a spouse.
2-18           Sec. 3.402.  ECONOMIC CONTRIBUTION. (a)  For purposes of this
2-19     subchapter, "economic contribution" is the dollar amount of:
2-20                 (1)  the reduction of the principal amount of a debt
2-21     secured by a lien on property owned before marriage, to the extent
2-22     the lien existed at the time of marriage;
2-23                 (2)  the reduction of the principal amount of a debt
2-24     secured by a lien on property received by a spouse by gift, devise,
2-25     or descent during a marriage, to the extent the debt existed at the
2-26     time the property was received;
2-27                 (3)  the reduction of the principal amount of that part
 3-1     of a debt, including a home equity loan:
 3-2                       (A)  incurred during a marriage;
 3-3                       (B)  secured by a lien on property; and
 3-4                       (C)  incurred for the acquisition of, or for
 3-5     capital improvements to, property;
 3-6                 (4)  the reduction of the principal amount of that part
 3-7     of a debt:
 3-8                       (A)  incurred during a marriage;
 3-9                       (B)  secured by a lien on property owned by a
3-10     spouse;
3-11                       (C)  for which the creditor agreed to look for
3-12     repayment solely to the separate marital estate of the spouse on
3-13     whose property the lien attached; and
3-14                       (D)  incurred for the acquisition of, or for
3-15     capital improvements to, property;
3-16                 (5)  the refinancing of the principal amount described
3-17     by Subdivisions (1)-(4), to the extent the refinancing reduces that
3-18     principal amount in a manner described by the appropriate
3-19     subdivision; and
3-20                 (6)  capital improvements to property other than by
3-21     incurring debt.
3-22           (b)  "Economic contribution" does not include the dollar
3-23     amount of:
3-24                 (1)  expenditures for ordinary maintenance and repair
3-25     or for taxes, interest, or insurance; or
3-26                 (2)  the contribution by a spouse of time, toil,
3-27     talent, or effort during the marriage.
 4-1           Sec. 3.403.  CLAIM BASED ON ECONOMIC CONTRIBUTION. (a)  A
 4-2     marital estate that makes an economic contribution to property
 4-3     owned by another marital estate has a claim for economic
 4-4     contribution with respect to the benefited estate.
 4-5           (b)  The amount of the claim under this section is equal to
 4-6     the product of:
 4-7                 (1)  the equity in the benefited property on the date
 4-8     of dissolution of the marriage, the death of a spouse, or
 4-9     disposition of the property;  multiplied by
4-10                 (2)  a fraction of which:
4-11                       (A)  the numerator is the economic contribution
4-12     to the property by the contributing estate; and
4-13                       (B)  the denominator is an amount equal to the
4-14     sum of:
4-15                             (i)  the economic contribution to the
4-16     property by the contributing estate;
4-17                             (ii)  the equity in the property as of the
4-18     date of the marriage or, if later, the date of the first economic
4-19     contribution by the contributing estate; and
4-20                             (iii)  the economic contribution to the
4-21     property by the benefited estate during the marriage.
4-22           (c)  The amount of a claim under this section may be less
4-23     than the total of the economic contributions made by the
4-24     contributing estate, but may not cause the contributing estate to
4-25     owe funds to the benefited estate.
4-26           (d)  The amount of a claim under this section may not exceed
4-27     the equity in the property on the date of dissolution of the
 5-1     marriage, the death of a spouse, or disposition of the property.
 5-2           (e)  The use and enjoyment of property during a marriage for
 5-3     which a claim for economic contribution to the property exists does
 5-4     not create a claim of an offsetting benefit against the claim.
 5-5     [ENHANCEMENT IN VALUE DUE TO FINANCIAL CONTRIBUTION OF COMMUNITY
 5-6     PROPERTY. (a)  The enhancement in value during a marriage of
 5-7     separate property owned by a spouse due to a financial contribution
 5-8     made with community property creates an equitable interest of the
 5-9     community estate in the separate property.]
5-10           [(b)  The equitable interest created under this section is
5-11     measured by the net amount of the enhancement in value of the
5-12     separate property during the marriage due to the financial
5-13     contribution made with community property.]
5-14           [Sec. 3.402.  USE OF COMMUNITY PROPERTY TO DISCHARGE DEBT ON
5-15     SEPARATE PROPERTY. (a)  The use of community property to discharge
5-16     all or part of a debt on separate property owned by a spouse during
5-17     a marriage creates an equitable interest of the community estate in
5-18     the separate property.]
5-19           [(b)  The equitable interest created under Subsection (a)  in
5-20     the enhanced value of separate property due to financial
5-21     contributions made with community property is computed by
5-22     multiplying the net enhanced value of the separate property by the
5-23     sum created by dividing:]
5-24                 [(1)  the total amount of the payments made by the
5-25     community estate to reduce the principal of the debt on the
5-26     separate property; by]
5-27                 [(2)  the sum of:]
 6-1                       [(A)  the amount computed under Subdivision (1);]
 6-2                       [(B)  the total amount of the payments made by
 6-3     the separate estate to reduce the principal on the debt; and]
 6-4                       [(C)  the total amount of any additional amount
 6-5     spent by the separate estate to acquire the interest in the
 6-6     property.]
 6-7           [(c)  For purposes of this section, the cost of any
 6-8     improvements made to the separate property paid for by either the
 6-9     separate or community estate is included as part of the principal
6-10     of the debt.]
6-11           Sec. 3.404 [3.403].  APPLICATION OF INCEPTION OF TITLE RULE;
6-12     OWNERSHIP INTEREST NOT CREATED. (a)  This subchapter does not
6-13     affect the rule of inception of title under which the character of
6-14     property is determined at the time the right to own or claim the
6-15     property arises [is acquired].
6-16           (b)  The claim for economic contribution [equitable interest]
6-17     created under this subchapter does not create an ownership interest
6-18     in property, but does create a claim against the property of the
6-19     benefited estate by the contributing estate. The claim matures on
6-20     dissolution of the marriage or the death of either spouse.
6-21           Sec. 3.405 [3.404].  MANAGEMENT RIGHTS. This subchapter does
6-22     not affect the right to manage, control, or dispose of marital
6-23     property as provided by this chapter. [EQUITABLE INTEREST OF
6-24     SEPARATE PROPERTY ESTATE. (a)  The separate estate of a spouse has
6-25     an equitable interest in the enhanced value of the separate estate
6-26     of the other spouse or in the enhanced value of the community
6-27     estate for:]
 7-1                 [(1)  a financial contribution made to the other
 7-2     separate estate or to the community estate; and]
 7-3                 [(2)  the discharge of all or part of a debt of the
 7-4     other separate estate or of the community estate.]
 7-5           [(b)  The equitable interest created by this section is
 7-6     measured in the manner provided by Section 3.401(b) or 3.402(b), as
 7-7     appropriate.]
 7-8           [Sec. 3.405.  USE AND ENJOYMENT OF PROPERTY. The use and
 7-9     enjoyment of property during a marriage does not create a claim of
7-10     offsetting benefits to the equitable interest created by this
7-11     subchapter.]
7-12           Sec. 3.406.  EQUITABLE LIEN. (a) On dissolution [termination]
7-13     of a marriage, the court shall impose an equitable lien on property
7-14     of a marital estate [community or separate property] to secure a
7-15     claim for economic contribution in that property by another marital
7-16     estate [arising by reason of an equitable interest as provided by
7-17     this subchapter].
7-18           (b)  On the death of a spouse, a court shall, on application
7-19     for a claim of economic contribution brought by the surviving
7-20     spouse, the personal representative of the estate of the deceased
7-21     spouse, or any other person interested in the estate, as defined by
7-22     Section 3, Texas Probate Code, impose an equitable lien on the
7-23     property of a benefited marital estate to secure a claim for
7-24     economic contribution by a contributing marital estate.
7-25           (c)  Subject to homestead restrictions, an equitable lien
7-26     under this section may be imposed on the entirety of a spouse's
7-27     property in the marital estate and is not limited to the item of
 8-1     property that benefited from an economic contribution.
 8-2           Sec. 3.407.  OFFSETTING CLAIMS. The court shall offset a
 8-3     claim for one marital estate's economic contribution in a specific
 8-4     asset of a second marital estate against the second marital
 8-5     estate's claim for economic contribution in a specific asset of the
 8-6     first marital estate.
 8-7           Sec. 3.408.  CLAIM FOR REIMBURSEMENT. (a)  A claim for
 8-8     economic contribution does not abrogate another claim for
 8-9     reimbursement in a factual circumstance not covered by this
8-10     subchapter.  In the case of a conflict between a claim for economic
8-11     contribution under this subchapter and a claim for reimbursement,
8-12     the claim for economic contribution, if proven, prevails.
8-13           (b)  A claim for reimbursement includes:
8-14                 (1)  payment by one marital estate of the unsecured
8-15     liabilities of another marital estate; and
8-16                 (2)  inadequate compensation for the time, toil,
8-17     talent, and effort of a spouse by a business entity under the
8-18     control and direction of that spouse.
8-19           (c)  The court shall resolve a claim for reimbursement by
8-20     using equitable principles, including the principle that claims for
8-21     reimbursement may be offset against each other if the court
8-22     determines it to be appropriate.
8-23           (d)  Benefits for the use and enjoyment of property may be
8-24     offset against a claim for reimbursement for expenditures to
8-25     benefit a marital estate on property that does not involve a claim
8-26     for economic contribution to the property.
8-27           Sec. 3.409.  NONREIMBURSABLE CLAIMS. The court may not
 9-1     recognize a marital estate's claim for reimbursement for:
 9-2                 (1)  the payment of child support, alimony, or spousal
 9-3     maintenance;
 9-4                 (2)  the living expenses of a spouse or child of a
 9-5     spouse;
 9-6                 (3)  contributions of property of a nominal value;
 9-7                 (4)  the payment of a liability of a nominal amount; or
 9-8                 (5)  a student loan owed by a spouse.
 9-9           Sec. 3.410.  EFFECT OF MARITAL PROPERTY AGREEMENTS. A
9-10     premarital or marital property agreement that satisfies the
9-11     requirements of Chapter 4 is effective to waive, release, assign,
9-12     or partition a claim for economic contribution under this
9-13     subchapter to the same extent the agreement would have been
9-14     effective to waive, release, assign, or partition a claim for
9-15     reimbursement under the law as it existed immediately before
9-16     September 1, 2001, unless the agreement provides otherwise.
9-17           SECTION 3. CONFORMING AMENDMENT. Section 3.006, Family Code,
9-18     is amended to read as follows:
9-19           Sec. 3.006.  PROPORTIONAL OWNERSHIP OF PROPERTY BY MARITAL
9-20     ESTATES. [(a)] If the community estate of the spouses and the
9-21     separate estate of a spouse have an ownership interest in property,
9-22     the respective ownership interests of the marital estates are
9-23     determined by the rule of inception of title.
9-24           [(b)  An equitable interest created by Subchapter E:]
9-25                 [(1)  does not create an ownership interest in a
9-26     spouse's separate property; and]
9-27                 [(2)  creates a claim against the spouse who owns the
 10-1    property that matures on termination of the marriage.]
 10-2          SECTION 4. CONFORMING AMENDMENT. Section 7.002, Family Code,
 10-3    is amended to read as follows:
 10-4          Sec. 7.002.  DIVISION OF PROPERTY UNDER SPECIAL
 10-5    CIRCUMSTANCES. In addition to the division of the estate of the
 10-6    parties required by Section 7.001, in a decree of divorce or
 10-7    annulment the court shall order a division of the following real
 10-8    and personal property, wherever situated, in a manner that the
 10-9    court deems just and right, having due regard for the rights of
10-10    each party and any children of the marriage:
10-11                (1)  property that was acquired by either spouse while
10-12    domiciled in another state and that would have been community
10-13    property if the spouse who acquired the property had been domiciled
10-14    in this state at the time of the acquisition;  or
10-15                (2)  property that was acquired by either spouse in
10-16    exchange for real or personal property and that would have been
10-17    community property if the spouse who acquired the property so
10-18    exchanged had been domiciled in this state at the time of its
10-19    acquisition[; or]
10-20                [(3)  the equitable interest, as provided by Subchapter
10-21    E, Chapter 3, of the:]
10-22                      [(A)  community estate in the separate estate of
10-23    a spouse;]
10-24                      [(B)  separate property of a spouse in the
10-25    separate property of the other spouse; and]
10-26                      [(C)  separate estate of a spouse in the
10-27    community estate].
 11-1          SECTION 5. CONFORMING AMENDMENT. Chapter 7, Family Code, is
 11-2    amended by adding Section 7.007 to read as follows:
 11-3          Sec. 7.007.  DISPOSITION OF CLAIM FOR ECONOMIC CONTRIBUTION
 11-4    OR CLAIM FOR REIMBURSEMENT. (a)  In a decree of divorce or
 11-5    annulment, the court shall determine the rights of both spouses in
 11-6    a claim for economic contribution as provided by Subchapter E,
 11-7    Chapter 3, and in a manner that the court considers just and right,
 11-8    having due regard for the rights of each party and any children of
 11-9    the marriage, shall:
11-10                (1)  order a division of a claim for economic
11-11    contribution of the community marital estate to the separate
11-12    marital estate of one of the spouses;
11-13                (2)  order that a claim for economic contribution of
11-14    one separate marital estate in the community marital estate of the
11-15    other spouse be awarded to the owner of the separate marital
11-16    estate; and
11-17                (3)  order that a claim for economic contribution of
11-18    one separate marital estate in the separate marital estate of the
11-19    other spouse be awarded to the owner of the contributing marital
11-20    estate.
11-21          (b)  In a decree of divorce or annulment, the court shall
11-22    determine the rights of both spouses in a claim for reimbursement
11-23    as provided by Subchapter E, Chapter 3, and shall apply equitable
11-24    principles to:
11-25                (1)  determine whether to recognize the claim after
11-26    taking into account all the relative circumstances of the spouses;
11-27    and
 12-1                (2)  order a division of the claim for reimbursement,
 12-2    if appropriate, in a manner that the court considers just and
 12-3    right, having due regard for the rights of each party and any
 12-4    children of the marriage.
 12-5          SECTION 6. EFFECTIVE DATE;  TRANSITION. (a)  This Act takes
 12-6    effect September 1, 2001.
 12-7          (b)  The change in law made by this Act applies to a suit for
 12-8    dissolution of a marriage or annulment pending on the effective
 12-9    date of this Act or filed on or after that date.
12-10          (c)  Section 3.410, Family Code, as added by this Act,
12-11    applies to a premarital property agreement or marital property
12-12    agreement executed before, on, or after the effective date of this
12-13    Act.