3) Characterization fo Property Flashcards
characterization: def
process of determining if property is CP or SP
tho gen CP presumption, it can be rebutted
inception of title
Character of property is fixed at the time it is acquired.
tracing
documentary evidence to get to inception of title
time acquired; result
if during marriage, presumed CP. But if before marriage or while living separate apart, ALWAYS SP
earnings + creations: when acquired?
when the labor was performed, not when the $ was received
CP presumption:
1) every asset acquired by either spouse during marriage is presumed CP
2) property possessed during marriage is presumed acquired during marriage
CP presumption: how to rebut
preponderance
tracing: showing funds used to acquire the asset were separate property
presumption when title is in 1 spouse’s name
1) does NOT mean the property is SP of that spouse
2) but see presumption in favor of legal title
SAME PRESUMPTION IN FAVOR OF CP btwn the parties. but 3rd parties can rely
title in 1 spouse’s name: 3rd parties can rely
if title is recorded in name of 1 spouse, then it is sp VIS A VIS 3rd party leasee / purchaser/ encumbrancer who:
- -has gf
- -dnk re marriage
(then couple resolves their dispute in family court)
presumption in favor of legal title
–SPECIFIC presumption that marriage-acquired property is CP defeats GENERAL presumption that ownership issues are as stated in legal title
BUT if title in name of 1 spouse, need clear and convincing to rebut! not preponderance like normal!
spouses hold title as joint tenants
presume JT unless another intent clearly shown
if divorce: presumed CP
joint title: def
lists both spouses’ names or might say “as joint tenants” or “spouses”
joint tenancy vs TIC: result: death
joint tenancy: passes by right of survivorship
TIC: passes by will or intestacy
joint tenanacy: result: divorce
in any joint form
will be presumed to be com property at divorce
title in both names: how to rebut CP presumption
bc there’s an AGREEMENT, you need ANOTHER AGREEMENT. Need more than just source of funds.
Marriage of Lucas
–if take joint title in any form
–presumed CP
–unless proof of agreement (oral ok) for spouse to have separate interest
–so any separate property contribution was a gift to the com. each spouse has NO separate prop interest, NO right to reimbursement.
(changed)
post-Lucas law re ownership
- -property acquired in or after 1984: CP can only be rebutted by
1) title says SP, or
2) written agreement to classify as SP
for pre 1984, Lucas controls: oral or implied agreement ok
reimbursement: when
applies if the property is CP ONLY (not if it’s SP+CP)
–divorce
reimbursement: analysis
1) characterize properrty: CP only?
2) reimbursement agreement?
3) statute?
reimbursement: def
claim against the property of the benefitted estate by the contributing estate taht matures on dissolution of marriage or death of either spouse
statutory reimbursement: req
1) post 1984
2) spouse can trace funds to SP +
3) no written waiver
4) has been classified as CP only
5) right kind of contribution
statutory reimbursement: right kinds: mnemonic
DIP
statutory reimbursement: right kinds: list
1) down payments
2) improvements
3) principal payments on mortgage
statutory reimbursement: NOT right kinds
interest on mortgage
taxes
insurance
maintenance
statutory reimbursement: How much?
- -no interest
- -no adjustment for change in value of property
- -can’t exceed net value of property at time of division (so 1 spouse might get it all)
statutory reimbursement: appreciation
is CP
2 basic scenarios
if there is a post-Lucas ((agreement or separate title)), then you rebutted the presumption of CP, so now you have CP/SP. Or you can show was mixed ch asset. But no reimbursement
OR can’t rebut the CP presumption, but you can still get reimbursement ((tracing alone))
married woman’s special presumption
property acquired before 1/1/75
- -by married woman
- -in written instrument
presumed: sp
mixed ch property
an asset can be part SP, part CP. think about the contributions of the estates
mixed ch property: rule
if asset initially acquired w some SP and some CP, then
the 2 estates both own the asset as TIC, subject to the usu TIC rules
mixed ch property: increases in value
increased value is also apportioned according to the proportions of the orig contributions
how to identify mixed ch property
(apportion, at inception of title) MUST BE WHEN ACQUIRED
not mixed ch property
–asset acquired before marriage (is SP) – even if com funds used to improve or make payments on. Triggers right to reimbursement.
or CP asset paid off with SP means reimbursement too
comingling rule
if SP + CP are so commingled that origins can’t be traced, entire asset is CP (ex. cash in bank acct).
BUT maybe can trace – just comingling doesnt mean you’re automatically turning it into CP.
comingling/tracing: presumption
presumption = assets purchased with funds from commingled bank account are purchased with CP
comingling/tracing: presumption: how to rebut
tracing!
tracing: kinds
1) exhaustion
2) direct tracing
exhaustion method: def
based on family expense presumption
family expense presumption: def
presumption that family expenses are paid out of available CP funds first, then SP only when the CP is exhausted (no reimbursing SP)
exhaustion method: rule
1) Fam expense presumption first – show all CP was used to cover com expenses. So, purchase must have been made with separate funds
2) specific spending–not over prolonged period
tracing – method courts prefer
exhaustion
direct tracing method: def
- -need sufficiently accurate records (strict application)
- -tie timing/amount of SP withdrawals to purchase of the asset in question
- -based on timing of deposit, clear intent to use SP to get the property
mutation: def
change in the form of property, that doesn’t change whether it’s SP or CP
overcoming CP presumption, re mutation
preponderance
1) fist item was SP
2) it was mutated
