Basic Presumptions

Question 1

FIRST PRESUMPTION: general “community property” presumption

Answer 1

a rebuttable presumption at both divorce and death that all property acquired by spouses during marriage while domiciled in California is community property.

Question 2

SECOND PRESUMPTION: Property Acquired During Marriage in Joint Form

Answer 2

Presumption that property acquired during marriage in joint form (JT or TIC) is CP. The nature of joint title can be rebutted by a showing of a written agreement to the contrary signed by both spouses.

Question 3

THIRD PRESUMPTION: “Form of title” presumption under Evidence Code § 662

Answer 3

Form of title presumption under Evidence Code § 662 that title is as reflected in the document through which parties acquired title. The CP presumption immediately above overcomes the title presumption.

Question 4

Meaning of marriage and marital property.

Answer 4

Marriage is a public as well as private relationship. Formalities of marriage must be observed.

Question 5

Presumptions applying to marital property: CP

Answer 5

Property acquired during marriage that is attributable to labor, skills, and effort of spouse is presumed to be CP unless it is an inheritance, gift, bequest, or devise. Other property acquired during marriage is also subject to the presumption. The presumption can be rebutted by “clear and satisfactory” evidence, although the standard seems to vary.

Question 6

Presumptions applying to marital property: SP

Answer 6

Property acquired prior to marriage or after separation is presumed to be SP [separate property]. Property acquired during marriage by gift, inheritance, or descent is also presumed to be SP. The rents, issues, and profits of SP are SP. A married person can convey their own SP without the consent of the spouse.

Question 7

Married Woman’s Presumption (prior to 1975)

Answer 7

When written title to property was placed in a married woman’s name alone before 1975, that property is presumptively the married woman’s SP.

Question 8

Title is not dispositive Presumption

Answer 8

If title to property is inconsistent with the funds used to purchase the property, a change in the character of the property may be inferred. Still, title is strong evidence of the nature of property, and if title is taken in a manner inconsistent with the funds used to purchase the property, it raises a presumption of transmutation. Forms of title including joint tenancy (JT), tenancy in common (TIC), and community property are presumed to be CP at divorce (CFC § 2581), and a writing is required to rebut the presumption.

California Civil Code § 682.1(a) (effective 7/1/01) now provides for designation of title in a deed as “community property with right of survivorship,” blending the advantages of CP and JT.

Question 9

Exchange Rule

Answer 9

A change in form does not change the character of the asset.

Question 10

Tracing

Answer 10

The character of property as CP or SP can be determined by tracing it back to the source funds or other property exchanged for purchase.

Question 11

Onerous Title

Answer 11

Property acquired through labor or other valuable consideration.

Question 12

Lucrative Title

Answer 12

Property acquired through gift, succession, inheritance, etc.

Question 13

CP: Equality of property interests & Spousal management

Answer 13

Both spouses have a present, vested interest in marital property during the marriage. The interest is not an expectancy.

As of 1975, spouses have equal management and control of CP.