3) Characterization fo Property

Question 1

characterization: def

Answer 1

process of determining if property is CP or SP

tho gen CP presumption, it can be rebutted

Question 2

inception of title

Answer 2

Character of property is fixed at the time it is acquired.

Question 3

tracing

Answer 3

documentary evidence to get to inception of title

Question 4

time acquired; result

Answer 4

if during marriage, presumed CP. But if before marriage or while living separate apart, ALWAYS SP

Question 5

earnings + creations: when acquired?

Answer 5

when the labor was performed, not when the $ was received

Question 6

CP presumption:

Answer 6

1) every asset acquired by either spouse during marriage is presumed CP
2) property possessed during marriage is presumed acquired during marriage

Question 7

CP presumption: how to rebut

Answer 7

preponderance

tracing: showing funds used to acquire the asset were separate property

Question 8

presumption when title is in 1 spouse’s name

Answer 8

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

Question 9

title in 1 spouse’s name: 3rd parties can rely

Answer 9

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)

Question 10

presumption in favor of legal title

Answer 10

–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!

Question 11

spouses hold title as joint tenants

Answer 11

presume JT unless another intent clearly shown

if divorce: presumed CP

Question 12

joint title: def

Answer 12

lists both spouses’ names or might say “as joint tenants” or “spouses”

Question 13

joint tenancy vs TIC: result: death

Answer 13

joint tenancy: passes by right of survivorship

TIC: passes by will or intestacy

Question 14

joint tenanacy: result: divorce

Answer 14

in any joint form

will be presumed to be com property at divorce

Question 15

title in both names: how to rebut CP presumption

Answer 15

bc there’s an AGREEMENT, you need ANOTHER AGREEMENT. Need more than just source of funds.

Question 16

Marriage of Lucas

Answer 16

–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)

Question 17

post-Lucas law re ownership

Answer 17

• -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

Question 18

reimbursement: when

Answer 18

applies if the property is CP ONLY (not if it’s SP+CP)

–divorce

Question 19

reimbursement: analysis

Answer 19

1) characterize properrty: CP only?
2) reimbursement agreement?
3) statute?

Question 20

reimbursement: def

Answer 20

claim against the property of the benefitted estate by the contributing estate taht matures on dissolution of marriage or death of either spouse

Question 21

statutory reimbursement: req

Answer 21

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

Question 22

statutory reimbursement: right kinds: mnemonic

Answer 22

DIP

Question 23

statutory reimbursement: right kinds: list

Answer 23

1) down payments
2) improvements
3) principal payments on mortgage

Question 24

statutory reimbursement: NOT right kinds

Answer 24

interest on mortgage
taxes
insurance
maintenance

Question 25

statutory reimbursement: How much?

Answer 25

• -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)

Question 26

statutory reimbursement: appreciation

Answer 26

is CP

Question 27

2 basic scenarios

Answer 27

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))

Question 28

married woman’s special presumption

Answer 28

property acquired before 1/1/75

• -by married woman
• -in written instrument

presumed: sp

Question 29

mixed ch property

Answer 29

an asset can be part SP, part CP. think about the contributions of the estates

Question 30

mixed ch property: rule

Answer 30

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

Question 31

mixed ch property: increases in value

Answer 31

increased value is also apportioned according to the proportions of the orig contributions

Question 32

how to identify mixed ch property

Answer 32

(apportion, at inception of title) MUST BE WHEN ACQUIRED

Question 33

not mixed ch property

Answer 33

–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

Question 34

comingling rule

Answer 34

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.

Question 35

comingling/tracing: presumption

Answer 35

presumption = assets purchased with funds from commingled bank account are purchased with CP

Question 36

comingling/tracing: presumption: how to rebut

Answer 36

tracing!

Question 37

tracing: kinds

Answer 37

1) exhaustion

2) direct tracing

Question 38

exhaustion method: def

Answer 38

based on family expense presumption

Question 39

family expense presumption: def

Answer 39

presumption that family expenses are paid out of available CP funds first, then SP only when the CP is exhausted (no reimbursing SP)

Question 40

exhaustion method: rule

Answer 40

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

Question 41

tracing – method courts prefer

Answer 41

exhaustion

Question 42

direct tracing method: def

Answer 42

• -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

Question 43

mutation: def

Answer 43

change in the form of property, that doesn’t change whether it’s SP or CP

Question 44

overcoming CP presumption, re mutation

Answer 44

preponderance

1) fist item was SP
2) it was mutated