A prenupt for Valentine’s Day

Prenupt for Valentine's Day

Prenuptial Agreement

What do engagement rings and bodily organs have to do with community property and what is “community property” anyway?  This blog could go on forever but I will try to focus this article on interpreting the broad concept of community property in Texas and in the process explain how diamond rings and kidneys are characterized.

According to Wikipedia – community property is a regime under which most property acquired during the marriage is owned jointly by both spouses and is divided upon divorce, annulment, or death.  Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion.

In Texas and the other eight community property states everything gained or acquired during the marriage is community property unless the proponent seeking it be characterized as separate property proves the property is separate in character.  This proof may be established by showing the property was inherited, secured with money or assets that are separate (sometimes called tracing) or was a gift.  A quick internet search reveals that an estimated six million couples get engaged on Valentines day accounting for nearly 40% of all engagements.  Sorry to be a downer on V-Day but “What about the ring?”  “Is it community property or separate property?”

Separate Property or Community Property, what about the ring?

The engagement ring is her separate property.

The engagement ring is the quintessential example for the application of community property rules.  It is commonly a valuable asset and an item that can easily be located and tracing is seldom a problem as it is almost always bought prior to marriage.  If only it were that simple.  The engagement ring is also indicative of the complications of the law.  One would think it is simple but nothing is simple when it comes to division of property.

Traditionally, the ring is purchased prior to marriage by the man (husband) with assets he owns prior to marriage.  However, when the man proposes, he gives his fiancee the ring and she therefore receives it as a gift (which is separate property) and in the alternative, she is given the ring in exchange for her promise to marry the man and therefore she earned the ring (income?) prior to marriage and it is her separate property either way.  This construct gets more confusing if the proposal is made and the ring purchased after marriage but in honor of valentines day nothing can top the case of Batista v. Batista, Short Form Order No. 20193/05 in the Supreme Court for the State of New York (2009).

Mr. Batista gave his wife a kidney.  Some time after the transplant his wife filed for divorce and Mr. Batista decided he wanted the kidney back.  More particularly, Mr. Batista argued that he should be compensated for the the organ because when he gave it to the love of his life, it became a valuable marital asset.   It is without dispute that he owned the kidney prior to marriage and that the transplant took place after marriage so the question presented is what was the character of the organ at the time of divorce?  As luck would have it, the Court did not get to that point stating that while the term marital property is “elastic and expansive” . . . Mr. Batista’s attempt to extract compensation for his former body part violates state law prohibiting the sale and trafficking of human organs.  Accordingly, Mr. Batista opened himself up (forgive the pun) to possible criminal prosecution and we may never know if kidney are community or separate property.

Happy Valentines Day and if you want to avoid the arguments and complications of community property in your future consider a prenuptial agreement.  In honor of Mr. Batista’s valiant effort, Reeves Law Firm is offering 10% off all prenup services if you mention this blog.

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