Many know that Texas divorce courts split the marital estate, usually half to each spouse, but few ask “Why is Texas a community property state?”
Ten states and one U.S. territory recognize community property: Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, Alaska, and Wisconsin.
Five types of community property (CP) law
|Traditional||California, Texas, New Mexico, Arizona, and Louisiana||These states had been either under Spanish or under Spanish and French law. Adoption of CP system was a continuation of what was already in place.|
|Uniform Marital Property Act||Wisconsin||State enacted a statute similar to the Uniform Marital Property Act in 1986.|
|Voluntary||Alaska||State has elective CP system popularly known as an "opt in" system.|
|Unique adoption||Idaho, Nevada, Washington||Idaho Territory and Washington each had a common law system before adopting the CP system. Nevada adopted CP system when thousands from California moved into the state after silver and gold were discovered.|
|Entity||Puerto Rico||Under this territory’s law, when a couple marries, a conjugal partnership is created that becomes a separate entity with its own juridical personality similar to a corporation.|
|Five states used California as a model for their own community property systems: Arizona, Idaho, Washington, Nevada, and New Mexico. The California "common" system of marital property was, in turn, copied from the Texas constitution. The Texas provisions came in part from the Louisiana Civil Code of 1825.|
The Visigothic code
The community property system in the western United States has roots in the Visigothic Code of Spain, which was inherited through Mexico’s ganancial community system.
The Visigoths, or West Goths, were a tribe of Indo European (probably Germanic) origin. As the Roman Empire disintegrated, the Goths settled in part of Spain.
During King Euric’s (466–485) reign, the first Visigoth legislation recognizing the marital community was enacted. In 693, the general law was revised and published as the Second Visigothic Code (Forum Judicum or, in Spanish, Fuero Juzgo).
The Visigothic Code identified the existence of marital community property, declaring
“When persons of equal rank marry one another, and, while living together, either increase or waste their property, where one is more wealthy than the other; they shall share in common the gains and losses.”
In addition to recognizing this form of community property, the Code acknowledged the separate property of a married woman.
Although the Code gave women equality of ownership, the actual management of the community estate was given to the husband. In the United States, it wasn’t until the 20th century that both spouses received equal rights of management and control.
Adoption of community property laws
Below are three major factors for the adoption of community property statutes:
- Legislators wanted to safeguard family assets from the creditors of negligent husbands. According to a delegate at the Texas Constitutional Convention of 1845, without community property, a wife “might be forced to ‘sit weeping by, and see the whole of her property wasted in midnight frolics by a drunken or gambling husband.” In California, a delegate of that state noted the that gold rush could lead “an idle, dissipated, visionary, or impractical man, [to] bring his family to penury and want.”
- Men wanted to attract women to the western frontier. A community property system benefits women who come to a marriage without property but who work hard alongside their husbands, either to create property or to increase the value of property that the husband owned before marriage.
- The life of a frontier wife in western frontier was more like that of her Visigothic sister—hard and dangerous—than of her sister from the feudal classes out of which English common law developed. A community property system gives credence to the contribution of women who work at home by recognizing the stay-at-home spouse and providing for equal sharing of the total earnings of both spouses.
Suffrage movement: additions to the law
In Texas, the women’s suffrage movement drove the movement toward equality in rights to property. In 1911, a statute was enacted permitting a married woman to petition to have full contractual power in a business context. In 1913, an act gave wives control of their earnings and the profits from their separate estates.
Perhaps influenced by the rights already given to women from its community property law, Texas became the ninth state in the United States, and the first state in the South, to ratify the 19th amendment on June 28, 1919. Texas woman had been voting in the state’s primaries since 1918.