pjc-family-2024-lib

E NFORCEABILITY OF P ROPERTY A GREEMENTS

PJC 207.5

Answer: _______________

COMMENT Source. The instruction in PJC 207.5A is based on Tex. Fam. Code §§4.202– .203. The instruction in PJC 207.5B is based on Tex. Fam. Code §4.205(a)(1). The instruction in PJC 207.5C is based on Tex. Fam. Code § 4.205(a)(2). When to use. The foregoing submission should be used if the enforceability of an agreement to convert separate property to community property is in dispute. PJC 207.5B should be used only if lack of voluntariness is in issue. Similarly, PJC 207.5C should be used only if lack of disclosure 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 202.10 (agreement to con vert separate property to community property) should also be submitted. (In such a case, the first paragraph of PJC 202.10, which is identical to PJC 207.5A, should be omitted.) No instruction on presumption. No instruction should be given on the presump tion, contained in Tex. Fam. Code §4.205(b), that an agreement containing certain wording is rebuttably presumed to provide a fair and reasonable disclosure of the legal effect of converting separate property to community property. The sole purpose of a presumption is to fix the burden of producing evidence. Sanders v. Davila , 593 S.W.2d 127 (Tex. App.—Amarillo 1979, writ ref’d n.r.e.); McGuire v. Brown , 580 S.W.2d 425 (Tex. App.—Austin 1979, writ ref’d n.r.e.). An instruction on the presumption may also constitute an impermissible comment on the weight of the evidence. Glover v. Henry , 749 S.W.2d 502 (Tex. App.—Eastland 1988, no writ). Only for Texas contracts. The foregoing submission is written for use only for agreements to convert separate property to community property that are clearly gov erned by Texas law. Agreements executed in another state may involve difficult issues of conflict of laws that are beyond the scope of this book.

[Chapters 208–214 are reserved for expansion.]

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