Modifying management rights over marital property – We’ve discussed a lot over the last two blogs about spousal management rights over marital property, whether it be community or separate property. Now, let’s discuss when spouses need to modify those rights.
Spouses can decide to modify management rights either out of convenience or because they are forced to due to extenuating circumstances. A good example would be when one spouse is transferred overseas, making it necessary for the other spouse to manage property without the need to obtain consent from the other. But there can be other reasons, too.
According to the Texas Family Code, there are generally three situations:
1. When both spouses agree.
2. When one spouse has disappeared, has abandoned the other spouse, or has permanently separated.
3. When one spouse has become incapacitated.
Here is a breakdown of each:
When both spouses agree
Normally, this can be achieved with a written power of attorney. A POA, or any other formal agreement, essentially lays out the details and fully discloses terms for what needs to be enforced. In this case, one spouse can sign over full management rights for a specific property or all property to the other spouse.
An agreement modifying joint-management powers may be written or oral, though putting it in writing is advisable just in case a third party demands written documentation of the agreement.
When a spouse disappears, abandons the other spouse, or is permanently separated from the other
In this instance, a spouse can file a sworn petition with the court requesting to modify their spouse’s management rights over community property.
The petition must be filed in the county where the petitioner resided when the separation began or the abandonment or disappearance occurred.
When a spouse is incapacitated
A spouse’s management powers over community and/or separate property can be modified if the spouse is judicially declared to be incapacitated in a permanent guardian proceeding.
The lone spouse can be classified as:
1. A community administrator and guardian with full power to manage, control, and dispose of the entire community estate and the incapacitated spouse’s separate property.
2. A community administrator but not guardian. When another party is appointed guardian of the estate, the petitioning spouse cannot manage the incapacitated spouse’s separate property.
3. Neither community administrator or guardian. If the petitioning spouse is not suitable to serve as either, that spouse only has management rights over her separate property, her sole-management community property, both spouses’ one-half interest in joint management community property, and income earned on property the petitioning spouse is authorized to administer.
If there is something we have discussed or not covered that you need further explanation on, please contact our Nelson Law Group, PC office to let us know. We are happy to help.