St. Mary's Law Journal


The present constitutional definition of married women’s separate property serves to protect the wife’s property rights and to preserve the community property system in Texas. However, the policy reasons for the constitutional definition no longer apply, since there is no present danger of the legislature reducing the property rights of married women or abandoning the community property system. Further, the needs and customs of the people of Texas have changed since the adoption of the original Texas Constitution in 1845. Today, it is estimated that thirty percent of couples who marry in the United States eventually divorce and sixty percent will separate at some time during their marriage. This indicates the necessity of altering the constitutional definition of separate property to realistically meet the problems faced by the citizens of Texas in the future, rather than problems that confronted the founding fathers of our state. The constitutional definition of separate property as interpreted by Texas courts limits the contractual power of a married couple upon separation. Texas views separation as a continuation of the technical bonds of marriage and regards the couple as united for all intents and purposes. Thus, rather than allowing a separated couple to determine their rights in all existing and future acquired property at the time of separation, Texas law forces couples to recontract periodically for the division of all gains acquired after separation. Further, separated couples face potential financial injustice because a spouse in Texas is generally liable for the unintentional torts committed by the other spouse. Also, post-separation debts create additional problems for separated couples since Texas presumes all debts incurred during marriage are debts of the community. To avoid such burdens and inequities, Texas should amend the current definition of separate property to meet the needs of separated couples in Texas.


St. Mary's University School of Law