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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102505
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My son just separated (4 months ago) from his common law companion.

Customer Question

My son just separated (4 months ago) from his common law companion. They have a daughter together and the separation was not amicable. Its worth mentioning that she kicked him out, and for two months kept their daughter from seeing him. He had to take her to court to enforce his rights as a father, and won that battle.
He now asked her for some things(that he owned before meeting her)and had left at the house they lived in together, but she refuses to give them back, claiming that she also wants all the gifts she gave him previously (for birthdays, father's day, etc. My question is... Is she legally able to do that?
San Antonio, TX
Submitted: 2 years ago.
Category: Family Law
Expert:  Ely replied 2 years ago.
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I am sorry to hear about this situation.
The police are not going to get involved here - this is a civil matter. If they were common law married, then he has two options. It depends on how involved he wants to become here.
A common law marriage can have a party claim a divorce, provided this is done within 2 years of splitting up. If so, then the Court will divide all separate and community property. Or rather, separate property (owned before, inherited, won in settlement) is given to that party, and community property (everything else) is divided 50/50.
This may or may not be worth his time. Likely, his creations would be considered part of HIS SEPARATE property, or at the very least included in his share of the COMMUNITY property.
Otherwise, he can simply file a suit for the items. To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.
Herein, he can claim trespass to chattel. "A trespass to chattels is a wrongful interference with or injury to property that causes actual damage to the property or deprives the owner of its use for a substantial period of time." Armstrong v. Benavides, 180 SW 3d 359 - Tex: Court of Appeals, 5th Dist. 2005 (internal citations omitted).
Unlike the divorce, this would not be in family court, but just civil court in general and would only focus on items he claims as his.
Perhaps a letter threatening either above would be enough to have her agree to turn these items over than to suffer through litigation.
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