In Texas, where property accrued during marriage is presumptively community property, couples have the right to engage in contracts prior to marriage to change the character of their property. Moreover, spouses may partition or exchange their community property after marriage and/or convert their separate property to community property.

The recent case of In Re: Cynthia Banigan creates issues as to how attorneys engage in best practices with their clients regarding partition and exchange agreements. In Banigan, the Fifth Circuit Court of Appeals ruled in January, 2023 that a 2015 declaratory judgment “establishing that the parties’ partition of community property agreement is valid and enforceable” should be set aside as void.

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