HBA-SEB C.S.H.B. 2142 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2142
By: Goodman
Juvenile Justice and Family Issues
4/12/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current law, a spouse in a suit for the dissolution of a marriage
must prove that an increase in value of separate property results from the
spouse's time, toil, and effort in order for the increase in value to be
considered community property and for the spouse to be reimbursed for that
effort. C.S.H.B. 2142 creates the presumption that an increase in the value
of separate property is community property and that the increase in value
results from the time, toil, and effort of one or both spouses.  In this
way, in order for an increase in value of separate property to not be
considered community property, a spouse must prove that the increase in the
value is not due to the time, toil, and effort of the other spouse. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1. POLICY STATEMENT.  Sets forth legislative findings.  

SECTION 2.  AMENDMENT.  Amends Chapter 3, Family Code, by adding Subchapter
E, as follows: 

SUBCHAPTER E.  EQUITABLE INTEREST OF COMMUNITY ESTATE
IN ENHANCED VALUE OF SEPARATE PROPERTY

Sec. 3.401.  ENHANCEMENT IN VALUE DUE TO COMMUNITY TIME, TOIL, AND EFFORT.
Establishes that the enhancement in value during a marriage of separate
property owned by a spouse due to the time, toil, and effort of one or both
spouses during the marriage creates an equitable interest of the community
estate in the separate property.  Authorizes the existence of the equitable
interest to be rebutted only to the extent that the spouse who owns the
separate property proves that the enhancement in value is not sue to the
time, toil, and effort of either spouse during the marriage.   

Sec. 3.402.  ENHANCEMENT IN VALUE DUE TO FINANCIAL CONTRIBUTION OF
COMMUNITY PROPERTY.  Establishes that the enhancement in value during a
marriage of separate property owned by a spouse due to financial
contributions made with community property creates an equitable interest of
the community estate in the separate property. Provides that the equitable
interest created under this section is measured by the amount of the
enhancement in value of the separate property.   

Sec. 3.403.  USE OF COMMUNITY PROPERTY TO DISCHARGE DEBT ON SEPARATE
PROPERTY.  Provides that the use of community property to discharge all or
part of a debt on separate property owned by a spouse creates an equitable
interest of the community estate in the separate property.  Sets forth the
computation for the equitable interest created in this section.
Establishes that for the purposes of this section, the cost of any
improvements made to the separate property paid for by either the separate
or community estate is included as part of the principal of the debt. 
 
Sec. 3.404.  APPLICATION OF INCEPTION OF TITLE RULE.  Establishes that this
subchapter does not affect the rule of inception of title under which the
character of property is determined at the time the right to the property
is acquired.  Provides that property owned or claimed by a person before or
after the existence of a marriage or acquired during the marriage by gift,
devise, or descent is separate property.  Specifies that the respective
ownership interests of two marital estates in a property are determined by
the rule of inception of title if the community estate and the separate
estate of either or both spouses have an ownership interest in the
property.  Establishes that the respective equitable interests in that
property are measured by the contributions of each estate.   

Sec. 3.405.  EQUITABLE LIEN.  Authorizes a court to impose an equitable
lien of community or separate property to protect a claim of an equitable
interest by a separate or community estate.     

SECTION 3.  AMENDMENT.  Amends Section 7.002, Family Code, to require the
court in a decree of divorce or annulment to order a division of separate
property in which an equitable interest of the community estate is created
as provided by Subchapter E, Chapter 3.  Makes a conforming change. 

SECTION 4.  EFFECTIVE DATE.  Effective date: September 1, 1999.  Provides
that this Act applies to a suit for dissolution of marriage pending on that
date or filed after that date. 

SECTION 5.  EMERGENCY.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original by adding new SECTIONS 1 and 2 and
redesignating SECTIONS 2-4 of the original to SECTIONS 3-5 of the
substitute, as follows: 

The substitute modifies the original in SECTION 1 by setting forth
legislative findings to adopt the rationale stated by the Texas Supreme
Court in Anderson v. Gilliland and reject the rationale expresses in Jensen
v. Jensen. SECTION 1 of the original would have amended Section 3.003,
Family Code, to provide that the increase in value during a marriage of
separate property owned by a spouse due to the time, toil, and effort of
one or both of the spouses during the marriage or due to the financial
contributions made with community property for the separate property is
presumed to be community property.  The original would have also set forth
the process for rebuttal of that presumption and established the
consideration of a discharge of a debt by the community property as the
principal reduction of the debt.  

The substitute modifies the original in SECTION 2 to amend Chapter 3,
Family Code, by adding Subchapter E, which establishes the equitable
interest of community estate in enhanced value of separate property.   

The substitute modifies the original in SECTION 3 by amending Section
7.002, Family Code, to require the court in a decree of divorce or
annulment to order a division of separate property in which an equitable
interest of the community estate is created as provided by Subchapter E,
Chapter 3. This differs from the original because the original referred to
property that increased or appreciated in value during a marriage as
provided by Section 3.003, the amendments to which were deleted by the
substitute.