1.A. Initial Matters & Presumptions Flashcards
What is the rule of division upon divorce?
At divorce, absent contrary agreement, or unless statute or policy otherwise require, all CP (and QCP) is subject to equal division in kind. Each spouse retains their SP at divorce.
How should you begin an answer to a CP question?
CA is a CP state.
Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired or earned by either spouse during a marriage is CP.
Property owned before a marriage, earned after permanent separation or brought in by gift, bequest (inheritance), devise (will) or descent (through intestacy) is presumed SP.
What is it called when a California couple own property out of state?
Under CA law, “quasi community property” is property acquired during a marriage while domiciled in another state, that would have been CP had it been acquired at that time in CA. Upon death or divorce, QCP is treated as CP.
General Presumption
Generally, all assets are CP - unless SP - and anything brought into a marriage for consideration is presumed CP, e.g., wages and salaries.
Rents & profits from SP are SP. Earnings after permanent separation are SP.
Bonus Points:
SP proponent has the burden to prove otherwise.
Buz Words: burden of proof is “by a preponderance of the evidence” (aka more likely than not).
What is the SP “ Source Rule”?
Property acquired using separate funds is SP, if you can trace back the acquisition to the SP.
What is the “Comingled Funds” rule?
If you add CP funds and SP funds into the same account, they will be presumed CP, without an agreement to the contrary (E.g., joint A/Cs)
When using funds from a joint account where CP and SP are “comingled” - under exhaustion rule - describe (1) the “Family Expense Presumption,” and (2) the “Non-Reimbursement Rule”
Family: If SP and CP in a/c, assume CP is used for family expenses
Non-Reimbursement: If SP only in a/c and family expense paid, not right to reimbursement from the community.
Commingled Funds - Who has the burden of proof?
Typically, the burden of proof to prove something is SP is on the SP proponent. But the “accounting burden” for commingled funds is particularly heavy - you could have just put it in a separate account, so if you can’t satisfy the tracing burden, it’s presumed CP.
Permanent Separation?
Permanent separation occurred when (1) a spouse expresses intent to end the marriage and (2) the conduct of that spouse is consistent with his or her intent to end the marriage.
Describe the two tracing methods?
“Exhaustion” and “Direct Tracing” with both there must be an historical tracing of all transactions in the a/c with commingled funds - for separate expenses and family expenses, SP and CP deposits/withdrawals.
What is the exhaustion method?
If all CP funds were exhausted by family expenses, when a purchase was made, it’s deemed made with SP.
What is the direct tracing method?
If SP and CP in a/c, must prove INTENT TO USE SP to purchase (possible if divorce, not really possible if dead - can’t testify as to intent)
What’s the rules regarding incomings from special property?
All rents, profits and issues from SP is deemed SP.
