Bar Exam - Last Minute Points Flashcards
Pereira Method
SP business growth predominately one spouse’s labor and abilities.
SP business spouse entitled to original business value and 10% annual rate of return, both are SP. Remaining value is CP.
Van Camp Method
Value of SP business derived from character and nature of business itself.
Community is entitled to reasonable salary value of the spouse’s labor minus any amount received by the community and minus any community expenses paid. All else is SP.
Pre 1985 Transmutation
Oral transmutations of SP to CP, CP to SP, or SP of one spouse to other SP of other spouse is okay.
Post 1985 Transmutation
Must (i) be in writing, (ii) expressly declare that change in ownership is being made, (iii) have consent of spouse whose interest is adversely affected.
Exception to writing requirement: gifts of personal nature used solely or principally by spouse who received gift and insubstantial in value.
Educational Expenses - CP/SP
Old rule: No reimbursement @ dissolution for contributions made
New Rule: Upon dissolution/legal separation, community entitled to reimbursement w/ interest for community contributions that substantially enhanc earning capacity.
Defenses: 1) Community substantially benefited from education (presumed for education 10+ yrs ago; 2) Other spouse received community funded education; 3) need for spousal support reduced as result of training
Married Woman’s Presumption - Pre 1/1/75
Property acquired by married woman through written instrument presumed to be her SP unless instrument named both H and W
Rebutting Presumption - Rebuttable by H, but conclusive as to 3P. Rebutted by clear and convincing evidence tracing to CP source AND showing that H did not control/manage CP source.
3P BFP - Presumption of SP is conclusive as to 3P purchaser who dealt w/ married woman, legal rep or successors in good faith, paid value and took w/o notice of interest of husband
Lucas/Anti-Lucas
Lucas - H and W bought property as joint tenants/tenants in common w/ SP and CP, presumed gift to community and it is all CP. Rebut if prove parties agreed separate funds and SP. Applies at death and to property acquired prior to 1/1/1984
Anti-Lucas - At dissolution of marriage, still presumptively CP absent written agreement/express statement in deed/other title. But, spouse who contribute separate funds entitled to reimbursement w/o interest for contributions to down payments, improvements or principal payments on mortgage
Amend Complaint to add Defendant
1) Claim arises out of same transaction/occurrence as original complaint
2) New party knew of original actions w/in 120 days of filing
3) New party, but for mistake of identity of the party, should have been named as original party
Claim Preclusion (res judicata)
3 elements:
1) Same claim
2) Same parties
3) Final judgement on the merits
Issue Preclusion (collateral estoppel)
4 elements:
1) Final judgement on the merits
2) Issue actually litigated
3) Issue essential to judgment
4) Being used against one who was party in first case
ALSO:
Must be fair to preclude.
Personal Jurisdiction
General
1) Consent
2) Presence
3) Domiciled - Remember person vs. corporation
Specific
1) minimum contacts (purposefully availed and foreseeable)
2) Should not offend traditional notions of
3) Fair play and substantial justice
Subject Matter Jurisdiction
Federal Question - Federal law or substantial federal question
Diversity Jurisdiction:
- All plaintiffs diverse from all defendants
- Amount in controversy greater than or equal to $75,000
- Choice of Law: Erie - Substance vs. Procedure (When fed courts confronted w/ fed vs state law, apply state on substantive law and federal on procedural issue)
Venue
Proper when:
1) Where D resides (so long as all D reside in same state)
2) Substantial part of event/omission giving rise to claim occurred
3) Where D subject to personal jurisdiction
Supplemental Jurisdiction
So long as fed court has jurisdiction over one of plaintiff’s claims through fed question or diversity jurisdiction, court can hear other claims that arise out of same transaction/occurence.
Joinder
Compulsory - party is “necessary for just adjudication”.
“necessary” - have interest in suit, failure to join would adversely effect such parties’ interest; failure to join would lead to multiplicity of litigation
Permissive - party may be joined as P or D where claim at issue arises out of same series of occurrences/transactions and there is question of law/fact common to all parties
Joinder of Claims - allows plaintiff to join any number and type of claims against defendant. For diversity purposes, plaintiff may aggregate all claims to exceed $75k jurisdictional amount.
Threshold Issues
Always discuss!!
Standing - person is proper to present matter at issue to court for adjudication
Mootness - presents existing or live controversy or prejudice, moot if threat no longer exists
Ripeness - cannot approach before subject to prejudice/real threat of prejudice
State Action
Equal Protection Clause
14th Amendment
3 Levels of Classification:
- Strict Scrutiny - race, national origin
- Immediate Scrutiny - gender, legitimacy
- Rational Basis Test - everything else
Strict Scrutiny
Race, national origin <- Through Equal Protection Clause
Alienage, Fundamental Rights (voting, travel, privacy) <- Through Due Process Clause
Burden on the State
Compelling State Interest
Intermediate Scrutiny
Gender, Legitimacy <- Through Equal Protection Clause
Children of immigrants, right to public education
Burden is on the State
Substantial Relationship to Important Governmental Interest
Rational Basis Test
Everything Else
Burden on Plaintiff
Rationally related to legitimate state interest
Due Process
5th Amendment and 14th Amendment
Strict Scrutiny applies to fundamental rights (privacy, vote, interstate travel, 1st Amend, right to refuse medical treatment)
Rational Basis to all other rights
Dormant Commerce Clause
States can’t discriminate against interstate commerce/unreasonably burden interstate commerce.
Discriminate against interstate commerce - strict scrutiny
Burdens interstate commerce, but does not discriminate - okay if important state interest, does not impose unreasonable burden
Joint Tenancy
Each joint tenant shares in ownership of a single interest, each having same rights.
Key Feature: Right of Survivorship to surviving joint tenants
Creation: Unity of Time, Title, Interest, and Possession
Severance: Right of Survivorship cannot be severed by testamentary instrument, but can be severed by
- Inter Vivos Transfer - grantee and original tenants become tenants in common; creditor sale severs joint tenancy
- Mortgage
- Leases - split on if this constitutes severance, could be seen as temporary suspension
- Contract of Sale
Tenancy in Common
Concurrent estate, no right of survivorship
Creation: Any conveyance to multiple grantees which does not expressly indicate contrary intent
Each co-tenant holds separate undivided interest in property which is freely transferable at death or intervivos. Need not be prorata, but each has unrestricted right to possess entire property.
Fee Simple Absolute
“to A and his heirs”
Duration: Forever
Future Interests: None
Fee Simple Determinable
“to A and his heirs for as long as” or “until” or “while” or “during”
Duration: As long as condition is met. Automatically goes back to grantor.
Future Interest in Grantor: Possibility of Re-Enter
