pjc-family-2024-lib

E NFORCEABILITY OF P ROPERTY A GREEMENTS

PJC 207.3

Answer “Yes” or “No.” Answer: _______________

COMMENT Source. The instruction in PJC 207.3A is based on Tex. Fam. Code §§4.102, 4.104. The instruction in PJC 207.3B is based on Tex. Fam. Code §4.105(a)(1). The instruction in PJC 207.3C is based on Tex. Fam. Code § 4.105(a)(2)(A)–(C). The part of Tex. Fam. Code § 4.105(a)(2) dealing with unconscionability has been omitted from PJC 207.3C; see the comment below entitled “Unconscionability.” In item 3 of PJC 207.3C, the conjunctive phrase “did not have and reasonably could not have had” is used in place of the disjunctive phrase “did not have or reasonably could not have had” that appears in Tex. Fam. Code §4.105(a)(2)(C); in the context, it was the apparent intent of the legislature that the party opposing enforcement must prove both elements. When to use. The foregoing submission should be used if the enforceability of a partition or exchange agreement is in dispute. PJC 207.3B should be used only if lack of voluntariness is in issue. Similarly, PJC 207.3C should be used only if lack of dis closure and knowledge is in issue. See PJC 207.1 (enforceability of property agreements—separate trials) for the Committee’s suggestion that the trial court consider a separate trial for enforceability issues. If the characterization of property is in issue in the same trial, the instructions in PJC 202.1 (separate and community property) and PJC 202.8 (partition or exchange agreement) should also be submitted. (In such a case, PJC 207.3A should be omitted, because it is identical to the first paragraph of PJC 202.8.) Unconscionability. The instruction in PJC 207.3C should be submitted only if the court has found as a matter of law that the agreement was unconscionable when it was signed. Tex. Fam. Code § 4.105(a)(2), (b). Only for Texas contracts. The foregoing submission is written for use only for partition or exchange agreements clearly governed by Texas law. Agreements exe cuted in another state may involve difficult issues of conflict of laws that are beyond the scope of this book. Execution undisputed. The instruction in PJC 207.3B assumes that there is no dispute that the partition or exchange agreement was executed by the party against whom enforcement is sought. Remedies and defenses. Effective September 1, 1993, the remedies and defenses provided in section 4.105 are the exclusive remedies or defenses, including common law remedies or defenses. The enabling section of the 1993 Act provides: “This Act takes effect on September 1, 1993, and applies only to an agreement executed on or after that date. An agreement executed before that date is governed by the law in effect

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