pjc-family-2024-lib

PJC 202.1

C HARACTERIZATION OF P ROPERTY

No instruction should be given on the presumption, contained in Tex. Fam. Code §3.003, that property possessed by either spouse during or on dissolution of marriage is presumed to be community property. The sole purpose of a presumption is to fix the burden of producing evidence. McGuire v. Brown , 580 S.W.2d 425 (Tex. App.—Aus tin 1979, writ ref’d n.r.e.); Sanders v. Davila , 593 S.W.2d 127 (Tex. App.—Amarillo 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). No instruction regarding “quasi-community property” should be given, because property, wherever found, that is not found to be separate property is generally divisi ble as community property. Tex. Fam. Code §7.002(a); Cameron v. Cameron , 641 S.W.2d 210 (Tex. 1982). Because of federal preemption, however, some property may not be divided by a divorce court. Ridgway v. Ridgway , 454 U.S. 46 (1981); Ex parte Burson , 615 S.W.2d 192 (Tex. 1981). If validity of property agreement is disputed. The foregoing instruction is worded on the assumption that there is no dispute about the validity of any premarital agreement, partition or exchange agreement, or agreement between the spouses con cerning income or property derived from separate property mentioned in items 4, 5, and 6 of the instruction or of any agreement to convert separate property to community property. If the validity of such an agreement is in dispute, see PJC 207.1–207.5.

44