Form 63-6

This example is furnished merely for illustration and should not be used as a standard form. The nature of partition or exchange agreements makes the variables so numerous as to defy the use of simple forms.

This form is designed to be used by married persons to partition or exchange community property as desired and to agree that all future income and property arising from the property being partitioned or exchanged will also be separate property.

Partition or Exchange Agreement

[Basic]

The parties to this Partition or Exchange Agreement are [name of party A], of [county] County, Texas, and [name of party B], of [county] County, Texas.

Stipulations

1.The parties are entering into this agreement in accordance with article XVI, sec­tion 15, of the Texas Constitution, as amended, and relevant sections of the Texas Family Code, as amended. Section 3.001 of the Texas Family Code defines a spouse’s separate prop­erty as the property owned or claimed by the spouse before marriage; the property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Section 3.002 of the Texas Family Code defines community property as the property, other than separate property, acquired by either spouse during marriage. Texas law provides that income from separate property during the marriage is community property. A partition and exchange agreement makes what would otherwise be community property instead be separate property.

2.The parties acknowledge and agree that they are making and entering into this agreement voluntarily and without the intention to defraud or prejudice preexisting creditors.

3.The parties own as community property certain real and/or personal property as described in Schedules A and B, which are attached to this agreement. The parties intend by this agreement to partition or exchange those properties between themselves.

4.Each party desires to partition or exchange that community property in order for each party, following the execution of this agreement, to hold and possess [his or her/his/her] share as [his or her/his/her] sole and separate property.

5.The parties intend to clarify their respective property rights to eliminate any uncer­tainty about those rights.

6.The parties intend by this agreement that no future community property will be created during the remainder of their marriage.

In consideration of the mutual promises, agreements, partitions, exchanges, releases, and waivers contained in this agreement and in consideration of the parties’ desire to establish certain rights and obligations by this agreement, and with the intent to be fully bound by the terms of this agreement, the parties covenant, agree, and contract as follows:

Article 1 

Statement of Facts

1.1Property of Parties

The parties own as community property all that certain estate, real, personal, and mixed, described in Schedules A and B attached to this agreement.

1.2Disclosure

Each party represents and warrants to the other party that [he or she/he/she] has [include if applicable: , to the best of [his or her/his/her] ability,] made to the other party a [complete and accurate/fair and reasonable] disclosure of the nature and extent of the commu­nity property of the parties, including values, and financial obligations, contingent or other­wise, and that the disclosure includes but is not limited to the property set forth in Schedules A and B attached to this agreement and other documentation exchanged between the parties before their signing of this agreement. Each party additionally acknowledges that, before the signing of this agreement, [he or she/he/she] has been provided a fair and reasonable disclo­sure of the community property and financial obligations of the parties. Furthermore, and before the execution of this agreement, each party has previously offered to provide, or has provided, to the other party all information and documentation pertaining to all community property, including income and value, and all financial obligations that have been requested by the other party. Each party acknowledges that [he or she/he/she] has, or reasonably could have had, full and complete knowledge of the community estate of the parties and of all finan­cial obligations of the community estate of the parties.

Article 2 

Partition of Property

2.1Property Partitioned to [name of party A]

The parties agree that [name of party A] will own, possess, and enjoy as [his/her] sole and separate estate, free from any claim of [name of party B], the property listed in Schedule A, which is attached to this agreement and incorporated in it for all purposes. [Name of party B] partitions and exchanges to [name of party A] all [her/his] community-property interest in and to all the property listed in Schedule A, together with any insurance policies covering the property and any escrow accounts that relate to it. [Name of party B] grants, releases, and con­firms to [name of party A] and to [his/her] heirs and assigns all right, title, and interest in and claims to the property listed in Schedule A, to have and to hold the same, with all and singular the hereditaments and appurtenances thereto belonging forever.

2.2Property Partitioned to [name of party B]

The parties agree that [name of party B] will own, possess, and enjoy as [her/his] sole and separate estate, free from any claim of [name of party A], all the property listed in Sched­ule B, which is attached to this agreement and incorporated in it for all purposes. [Name of party A] partitions and exchanges to [name of party B] all [his/her] community-property inter­est in and to all the property listed in Schedule B, together with all insurance policies covering the property and all escrow accounts that relate to it. [Name of party A] grants, releases, and confirms to [name of party B] and to [her/his] heirs and assigns all right, title, and interest in and claims to the property listed in Schedule B, to have and to hold the same, with all and sin­gular the hereditaments and appurtenances thereto belonging forever.

2.3Asset Descriptions

The parties have tried to use the correct legal description for each asset listed in any schedule attached to this agreement. If any asset is incorrectly described, the description used is adequate for the purposes of this agreement and accompanying schedules, and the parties agree to execute any additional paperwork required to confirm ownership in the name of the party in whose schedule the asset appears.

Article 3 

Income or Property Derived from Separate Property

3.1Income from [name of party A]’s Separate Property

Except as noted below, [name of party B] agrees that all income, changes, mutations, and increases in kind or in value of [name of party A]’s separate property following the execu­tion of this agreement and all property that [he/she] may hereafter acquire [include if commu­nity estate will continue to exist: as [his/her] separate property], including all property acquired as a result of the reinvestment of income from [his/her] separate property, will be the separate property of [name of party A]. Income from separate property includes but is not lim­ited to interest, rents, royalties, stocks, splits, and dividends. Except as noted below, [name of party B] forever releases, relinquishes, and renounces any interest in such income, changes, mutations, and increases in kind or in value derived from [name of party A]’s separate prop­erty, including all property acquired as a result of the reinvestment of income from [his/her] separate property, in consideration of [name of party A]’s reciprocal agreement and release, relinquishment, and renunciation. All future earnings and income arising from [name of party A]’s separate property will be the separate property of [name of party A] unless the parties agree in writing to the contrary.

All future earnings and income arising from [name of party A]’s separate property will be the community property of the parties after the date of the execution of this agreement.

Except as noted below, [name of party B] agrees that all income, changes, mutations, and increases in kind or in value of [name of party A]’s separate property following the execu­tion of this agreement and all property that [he/she] may hereafter acquire [include if commu­nity estate will continue to exist: as [his/her] separate property], including all property acquired as a result of the reinvestment of income from [his/her] separate property, will be the separate property of [name of party A]. Income from separate property includes but is not lim­ited to interest, rents, royalties, stocks, splits, and dividends. Except as noted below, [name of party B] forever releases, relinquishes, and renounces any interest in such income, changes, mutations, and increases in kind or in value derived from [name of party A]’s separate prop­erty, including all property acquired as a result of the reinvestment of income from [his/her] separate property, in consideration of [name of party A]’s reciprocal agreement and release, relinquishment, and renunciation. Notwithstanding the preceding language in this paragraph, future earnings and income arising from [name of party A]’s separate property as listed in Schedule C will be the community property of the parties after the date of the execution of this agreement.

3.2Income from [name of party B]’s Separate Property

Except as noted below, [name of party A] agrees that all income, changes, mutations, and increases in kind or in value of [name of party B]’s separate property following the execu­tion of this agreement and all property that [she/he] may hereafter acquire [include if commu­nity estate will continue to exist: as [her/his] separate property], including all property acquired as a result of the reinvestment of income from [her/his] separate property, will be the separate property of [name of party B]. Income from separate property includes but is not lim­ited to interest, rents, royalties, stocks, splits, and dividends. Except as noted below, [name of party A] forever releases, relinquishes, and renounces any interest in such income, changes, mutations, and increases in kind or in value derived from [name of party B]’s separate prop­erty, including all property acquired as a result of the reinvestment of income from [her/his] separate property, in consideration of [name of party B]’s reciprocal agreement and release, relinquishment, and renunciation. All future earnings and income arising from [name of party B]’s separate property will be the separate property of [name of party B] unless the parties agree in writing to the contrary.

All future earnings and income arising from [name of party B]’s separate property will be the community property of the parties after the date of the execution of this agreement.

Except as noted below, [name of party A] agrees that all income, changes, mutations, and increases in kind or in value of [name of party B]’s separate property following the execu­tion of this agreement and all property that [she/he] may hereafter acquire [include if commu­nity estate will continue to exist: as [her/his] separate property], including all property acquired as a result of the reinvestment of income from [her/his] separate property, will be the separate property of [name of party B]. Income from separate property includes but is not lim­ited to interest, rents, royalties, stocks, splits, and dividends. Except as noted below, [name of party A] forever releases, relinquishes, and renounces any interest in such income, changes, mutations, and increases in kind or in value derived from [name of party B]’s separate prop­erty, including all property acquired as a result of the reinvestment of income from [her/his] separate property, in consideration of [name of party B]’s reciprocal agreement and release, relinquishment, and renunciation. Notwithstanding the preceding language in this paragraph, future earnings and income arising from [name of party B]’s separate property as listed in Schedule D will be the community property of the parties after the date of the execution of this agreement.

3.3Waiver of Claims

Each party agrees that the property being partitioned and exchanged between the parties as their respective separate property will be free from all claims that the other party may have before the date of this agreement, as well as all claims that may arise following the execution of this agreement. Any money used for the benefit of the other party will be presumed to be a gift to the other party, as contrasted with a payment for which reimbursement or repayment is later expected, unless the parties agree otherwise in writing. This waiver applies during the lifetime of both parties, as well as on the death of either or both parties. This waiver extends to any rights, whether choate or inchoate, that may arise under the laws of Texas or any other jurisdiction. Each party further agrees that, by signing this agreement and accepting any bene­fit whatsoever under it, [he or she/he/she] is estopped from making any claim of any kind at any time to any separate property or the separate estate of the other party, except as may expressly be provided for in this agreement.

Article 4 

Management of Properties

4.1Management of Properties

Each party has the full, free, and unrestricted right to manage the separate property over which [he or she/he/she] has control under section 3.101 of the Texas Family Code or suc­ceeding provisions of similar import and nature, including without limitation the right to con­vey or encumber the property; to dispose of it by sale, gift, or otherwise; and to deal with it without taking into consideration any rights or interests of the other party. If the joinder of [name of party A] or [name of party B] (“joining party”) should be required by law in connec­tion with the execution of any document by the other party with respect to the separate prop­erty of the other party, on request and from time to time, the joining party must execute all such documents necessary to effect the desires of the other party, including gift tax returns, but without any personal liability of the joining party. Neither party has the authority to encumber or dispose of the other party’s separate property without the other party’s express written consent. Notwithstanding any of the provisions set forth in this section 4.1, the parties agree that any gift in excess of the annual gift tax exclusion that would be applied to either party’s unified lifetime credit must be consented to in writing by the parties before the making of the gift.

Article 5 

Reimbursement

5.1No Reimbursement Claims

[Name of party A] waives the right to assert any claim for reimbursement that [he/she] might presently or in the future have on behalf of or against the community estate. [Name of party A] further waives the right to assert any claim for reimbursement that [he/she] might presently or in the future have against the separate estate of [name of party B].

[Name of party B] waives the right to assert any claim for reimbursement that [she/he] might presently or in the future have on behalf of or against the community estate. [Name of party B] further waives the right to assert any claim for reimbursement that [she/he] might presently or in the future have against the separate estate of [name of party A].

Article 6 

Undisclosed Property

6.1Undisclosed Property

All community property not listed in any schedule attached to this agreement is owned by the parties as equal cotenants with right of survivorship. Each party hereby grants, con­veys, and assigns to the other party an undivided one-half interest in any such unlisted com­munity property owned in the name of the granting party.

Article 7 

Other Provisions

7.1Entire Agreement

Each party has carefully read this agreement, including all schedules attached to it and other documents to which it refers, and has executed it in reliance on the party’s own judg­ment. This agreement expresses the entire agreement between the parties concerning the sub­ject it purports to cover.

7.2Incorporation of Schedules

All schedules and other instruments referred to in this agreement are incorporated into this agreement as completely as if they were copied verbatim in the body of it.

7.3Partial Invalidity

If any provision of this agreement is for any reason found to be unenforceable, all other provisions nonetheless remain enforceable.

7.4Enforceability

This agreement may be enforced by suit in law or equity by either of the parties or by their heirs, executors, attorneys, or assigns. Each party agrees that, by signing this agreement and accepting any benefit whatsoever under it, [he or she/he/she] is estopped and barred from making any claim of any kind at any time to any separate property or the separate estate of the other party or to any property described in this agreement as being the separate property of the other party. Each party waives [his or her/his/her] right to make claims to any separate prop­erty of the other party or to any property designated as belonging to the separate estate of the other party, whether the property is acquired before or after this agreement is signed.

7.5Successors

This agreement binds and inures to the benefit of the parties and their respective lega­tees, devisees, heirs, executors, legal and personal representatives, assigns, transferees, and successors in interest.

7.6Amendment or Modification

This agreement may be waived, abandoned, modified, amended, discharged, or termi­nated only by a written instrument signed by both parties that specifically identifies the waiver, abandonment, modification, amendment, discharge, or termination.

7.7Effective Date

This agreement takes effect when it is executed by both parties and will remain in effect even when the parties’ marriage is dissolved by death or otherwise.

7.8Execution of Documents

Each party agrees to cooperate fully with the other in performing all acts and in execut­ing, acknowledging, and delivering all instruments and documents required to accomplish the intent of this agreement, including but not limited to deeds, assignments, and promissory notes. Each party agrees to execute all documents required to accomplish the intent of this agreement within fourteen days after the documents are presented to the party for execution.

7.9Attorney’s Fees and Expenses for Enforcement

If either party defaults in performing any obligation under this agreement so that the other party is required to engage the services of an attorney for enforcement or relief, or if either party brings an action or other proceeding to enforce this agreement or to enforce any judgment, decree, or order made by a court in connection with this agreement, the defaulting party must pay all reasonable attorney’s fees, expert’s fees, and other costs of the other party.

7.10Waiver of Breach or Term

The waiver of any breach of any provision of this agreement does not waive any other breach of that or any other provision. Waiver of any term of this agreement may be accom­plished only concerning future performance and only by a written instrument signed by both parties expressly stating the provisions waived.

7.11Titles and Captions

Article headings, titles, and captions contained in this agreement are merely for refer­ence and do not define, limit, extend, or describe the scope of this agreement or any provision.

7.12Representation

The attorney representing [name of party A] is [name]. The attorney representing [name of party B] is [name]. [Name of party A] has not received any legal, financial, or other kind of advice from [name of party B] or from [her/his] attorney, [name], in connection with the advisability or nonadvisability of entering into this agreement. [Name of party B] has not received any legal, financial, or other kind of advice from [name of party A] or from [his/her] attorney, [name], in connection with the advisability or nonadvisability of entering into this agreement. [Name of party A] is relying on [his/her] own judgment and the advice of [his/her] attorney in entering into this agreement. [Name of party B] is relying on [her/his] own judg­ment and the advice of [her/his] attorney in entering into this agreement.

[[Name of party A]/[name of party B]] acknowledges that [he/she] has had the opportu­nity to retain independent counsel to represent [him/her] in connection with this agreement and that [he/she] has been encouraged by [[name of party B]/[name of party A]] and others to obtain an attorney of [his/her] choice to represent [him/her], but that [he/she] has specifically declined to do so and is relying on [his/her] own judgment in entering into this agreement. Notwithstanding the fact that [[name of party A]/[name of party B]] has represented [himself/herself] in this matter, [[name of party A]/[name of party B]] reaffirms the warranties made by [him/her] in this agreement and further represents and warrants that [he/she] has the requisite knowledge, skill, and training to fully understand the consequences of [his/her] execution of this agreement. Finally, [[name of party A]/[name of party B]] represents and warrants that [he/she] has not received any legal, financial, or other kind of advice from [[name of party B]/[name of party A]] or [name] or any other attorney with the law firm of [name] in connection with the advisability or nonadvisability of entering into this agreement.

7.13Place of Performance and Governing Law

All rights, duties, and obligations under this agreement are payable and enforceable in [county] County, Texas. This agreement must be construed, and its performance enforced, under Texas law.

7.14Multiple Originals

This agreement is executed in multiple originals. This agreement is signed after execu­tion of the Waiver of Disclosure of Financial Information.

Article 8 

Representations and Warranties

Warning

Each party to this agreement understands that by signing this document [he or she/he/she] is permanently surrendering rights and claims [he or she/he/she] would otherwise have under Texas law and under the law of other jurisdic­tions.

8.1Representations and Warranties of [name of party A]

My name is [name of party A]. I represent and warrant that:

1.I have carefully read each and every page of this agreement [include if applicable: and all schedules attached or referred to, in their entirety].

2.I am fully and completely informed by my attorney about the law relating to the subject matter of this agreement and about the spousal rights and liabilities of both parties.

3.I am entering into this agreement voluntarily [include if applicable: after receiving the advice of independent counsel].

4.I have given careful and mature thought to the making of this agreement.

5.I fully and completely understand each provision of this agreement, concerning both the subject matter and the legal effect. I further acknowledge that this agreement was not procured by fraud, duress, or overreaching.

6.I have investigated the property and financial obligations of [name of party B] suf­ficiently to satisfy any questions I have in that regard, and I expressly waive any right to dis­closure of the property and financial obligations of [name of party B] beyond the disclosures provided.

7.I am not relying on any fiduciary obligations owed by one party to the other or on any duty of disclosure founded on a confidential or other relationship between the parties. Furthermore, I am not relying on any legal or accounting advice or representation of fact or law provided by [name of party B] or anyone acting on [her/his] behalf.

8.I fully understand that, by signing this agreement and accepting any benefit what­soever under it, I will be estopped from making any claim of any kind at any time to any sep­arate property or the separate estate of [name of party B], except as expressly provided for in this agreement.

9.I fully understand that by executing this agreement I may be adversely affecting my inheritance rights and property [include if applicable: and that I am permanently surrender­ing rights to income and property I would otherwise have under Texas law].

10.I am executing this agreement with intent to be bound fully by all its terms.

   
[Name of party A]

8.2Representations and Warranties of [name of party B]

My name is [name of party B]. I represent and warrant that:

1.I have carefully read each and every page of this agreement [include if applicable: and all schedules attached or referred to, in their entirety].

2.I am fully and completely informed by my attorney about the law relating to the subject matter of this agreement and about the spousal rights and liabilities of both parties.

3.I am entering into this agreement voluntarily [include if applicable: after receiving the advice of independent counsel].

4.I have given careful and mature thought to the making of this agreement.

5.I fully and completely understand each provision of this agreement, concerning both the subject matter and the legal effect. I further acknowledge that this agreement was not procured by fraud, duress, or overreaching.

6.I have investigated the property and financial obligations of [name of party A] suf­ficiently to satisfy any questions I have in that regard, and I expressly waive any right to dis­closure of the property and financial obligations of [name of party A] beyond the disclosures provided.

7.I am not relying on any fiduciary obligations owed by one party to the other or on any duty of disclosure founded on a confidential or other relationship between the parties. Furthermore, I am not relying on any legal or accounting advice or representation of fact or law provided by [name of party A] or anyone acting on [his/her] behalf.

8.I fully understand that, by signing this agreement and accepting any benefit what­soever under it, I will be estopped from making any claim of any kind at any time to any sep­arate property or the separate estate of [name of party A], except as expressly provided for in this agreement.

9.I fully understand that by executing this agreement I may be adversely affecting my inheritance rights and property [include if applicable: and that I am permanently surrender­ing rights to income and property I would otherwise have under Texas law].

10.I am executing this agreement with intent to be bound fully by all its terms.

   
[Name of party B]

EXECUTED in multiple originals on the dates and at the times of the acknowledg­ments shown below.

State of Texas)

County of)

This instrument was acknowledged before me at ____________ __.m. on __________________ by [name of party A].

   
Notary Public, State of Texas

I, the notary public whose signature appears above, certify that I am not an attorney representing either party to this agreement.

   

State of Texas)

County of)

This instrument was acknowledged before me at ____________ __.m. on __________________ by [name of party B].

   
Notary Public, State of Texas

I, the notary public whose signature appears above, certify that I am not an attorney representing either party to this agreement.