Dallas Bar Association
HEADNOTES June 2010 Volume 34 Number 6
Focus Family Law
Ethics Fest
Law Day Luncheon
On May 7, local judiciary and attorneys attended the 2010 Law Day Luncheon at which Hon. Barbara M.G. Lynn was the guest speaker. In addition to awards presented to the winners of the Law Day DISD art and essay contests, the Dallas Association of Young Lawyers also presented awards for Outstanding Young Lawyer (Jennifer Tobin), Outstanding Mentor (Tonya Parker) and the Liberty Bell Award (Jigna Vyas Gosal). The DAYL award winners are shown with DBA President Ike Vanden Eykel, DAYL President Jennifer Edgeworth and DAYL President-Elect Penny Brobst Blackwell.
More than 150 DBA members attended the annual evening Ethics Fest May 13, which included topics such as an Expert on Ethics panel (featuring Edward V. Smith, Hon. Mark Greenberg, Hon. Jorge Solis, Hon. Douglas S. Lang and James E. Coleman), the Top 10 Ways to Avoid Getting Sued for Malpractice, Avoiding Big Problems for Small Firms and a session on the current issues in multiple party representations. The event, sponsored by the DBA Legal Ethics Committee, garnered attendees three hours of Ethics MCLE.
The Basics of Marital Property by Dana Lim
A
s an attorney, you never know when a family law issue may arise. That’s why it is important to know the basics of marital property and how it applies to your client’s situation. First, Texas is a community property state. Unlike the common law marital property system used in many other states, the community property system presumes that all property acquired during marriage is community property. On the other hand, separate property, as defined by the Texas Constitution, is “[a]ll property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent.” Although these terms may seem pretty broad, they are fairly easy to understand. For example: Grandma’s china that you received when she died—separate property; wages from your job—community property. The difficulties in classifying property as community or separate usually arise when an item of separate property is mixed with either community property or community effort. The two landmark Texas cases which explain how to characterize marital property are De Blane v. Hugh Lynch & Co., 23 Tex. 25 (1859) and Stringfellow v. Sorrells, 18 S.W. 689 (Tex. 1891). To summarize, Texas law presumes that wages, earnings and increases
Inside 6 Common Law Marriage in Modern Days 8 Pro Bono Golf Tournament 11 Electronic Evidence: Who’s Getting Caught in the Act? 16 4C Court—An Addict’s LAST “Last Chance”
acquired during marriage are the results of the joint efforts of both husband and wife; therefore they are community property. However, if an item of separate property increases in value, it remains separate property, even if it is the other spouse who put forth the effort to enhance the value. Though these cases may be old, the concepts are still evident in modern case law. For instance, the legal evolution of De Blane has led the Texas Supreme Court to reason that, because wages earned during marriage are community property, any money saved during marriage as part of a retirement plan is also community property. Thus, it is subject to a just and right division upon the end of the marriage, even if the retirement benefits had not matured at the time of the dissolution of the marriage. Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976). Modern day examples of Stringfellow can best be understood through the lens of two other legal concepts: reimbursement and economic contribution. Under common law, the community estate was entitled to reimbursement for the expense and effort used to enhance the value of one spouse’s separate property. As you can imagine, this would sometimes lead to inequalities when the trial court divided the community estate. In order to fix these inequalities, continued on page 14