pjc-family-2024-lib

PJC 207.4

E NFORCEABILITY OF P ROPERTY A GREEMENTS

PJC 207.4D Enforceability of Agreement Concerning Income or Property Derived from Separate Property—Question

QUESTION 1 Is the agreement concerning income or property derived from separate prop erty unenforceable? Answer “Yes” or “No.” Answer: _______________ COMMENT Source. The instruction in PJC 207.4A is based on Tex. Fam. Code §§4.103, 4.104. The instruction in PJC 207.4B is based on Tex. Fam. Code §4.105(a)(1). The instruction in PJC 207.4C is based on Tex. Fam. Code §4.105(a)(2)(A)–(C). Tex. Fam. Code §4.105 deals specifically with partition and exchange agreements; although, apparently through oversight, that section does not expressly cover agree ments concerning income or property derived from separate property, the Committee believes that the same standard for enforceability should apply to both types of agree ment. See Daniel v. Daniel , 779 S.W.2d 110 (Tex. App.—Houston [1st Dist.] 1989, no writ). The part of Tex. Fam. Code §4.105(a)(2) dealing with unconscionability has been omitted from PJC 207.4C; see the comment below entitled “Unconscionability.” In item 3 of PJC 207.4C, 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 an agreement concerning income or property derived from separate property is in dispute. PJC 207.4B should be used only if lack of voluntariness is in issue. Similarly, PJC 207.4C should be used only if lack of disclosure 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 202.9 (agreement concern ing income or property derived from separate property) should also be submitted. (In such a case, PJC 207.4A should be omitted, because it is identical to the first para graph of PJC 202.9.)

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