REIMBURSEMENT CLAIMS
by Greg Enos
www.divorcereality.com
Reimbursement claims are hard to explain to clients and it is unclear to most attorneys how to prove and value
such claims. Since reimbursement claims are equitable in nature, it is totally up to the judge whether or not
to grant a reimbursement claim, how to value it and what to do about it. It is not even clear what the burden
of proof is in asserting a reimbursement claim.
1
Frankly, many judges do not know what to do with
reimbursement claims. Worse, a jury can be asked to determine a reimbursement claim. Tex. Fam. Code §
6.711(a). Marr v. Marr, 905 s.W.2d 331, 333 (Tex. App.—Waco 1995, no writ).
The 2009 amendments to the Texas Family Code did away with “economic contribution” claims and went
back to only reimbursement claims. Section 3.409 says what is not a reimbursement claim and Sec. 3.402(a)
lists what reimbursement claims can include. However, most “legal experts” writing about the new statute
have concluded that the list of possible reimbursement claims in the statute is not exhaustive, so there may
be common law reimbursement claims available (you may need to use the old Southwest 1
st
editions and go
back to the early part of the last century for your case law research).
As a practical matter, reimbursement claims seldom play a big role in most divorces. This topic is virtually
impossible to adequately summarize in the six page limit imposed on this article, so lawyers should look at
the statute, at the section on reimbursement claims in O’Connor’s Texas Family Law Handbook (starting at
page 807 in the 2011 book) and at the excellent seminar article by Joan Jenkins and Susan Oehl,
“Reimbursement”, Chapter 39 of the 2011 State Bar Advanced Family Law Course.
1. What is a reimbursement claim?
In Texas (unless there is a marital property agreement to the contrary), a married couple together owns the
community estate and each spouse can own his or her own separate estate. If a husband, for example, owns
a house prior to marriage, the house is his separate property even if during the marriage the married couple
use their community funds to build a $20,000 pool on the property. A reimbursement claim allows the
community estate to recover the money it spent for the capital improvement on the husband’s separate
property house. Since, under the “Inception of Title” Doctrine and the Texas Constitution, the husband’s
house always remains his separate property, the only way to get the $20,000 of community funds back or at
least have the expenditure recognized is a reimbursement claim. Very vague principles of equity (i.e.
fairness) give the judge almost total free rein to decide whether to recognize a claim for reimbursement, how
to value it and what to do about it. Claims for reimbursement can go both ways - a separate estate can make
a claim against the community or the other separate estate, but usually a reimbursement claim in a divorce
involves a claim by the community estate against the separate estate of one of the spouses.
1
The Austin and Waco Courts of Appeals have ruled that the spouse asserting the reimbursement claim
has the burden to prove by a preponderance of the evidence that the contributions came from the community estate.
Younger v. Younger, 315 S.W.2d 449, 452 (Tex. App.-Waco 1958, no writ); Jenkins v. Robinson, 169 S.W.2d 250, 251
(Tex. App. - Austin 1943, now writ). The Houston 14
th
and El Paso Courts of Appeals hold that a spouse asking for
reimbursement to the community estate is aided by the presumption that all contributions made during marriage come
from the community estate and so it is presumed that any funds spent during the marriage on a spouse’s separate property
were community. This puts the burden on the other spouse to rebut that presumption and prove separate funds were
spent. Zagorski v. Zagorski, 116 S.W.3d 309, 321-22 (Tex. App.-Houston [14
th
Dist.] 2003, pet. denied); Kimsey v.
Kimsey, 965 S.W.2d 690, 702 (Tex. App. - El Paso 1998, pet. denied).
1