Basics

Question 1

Types of Property

Answer 1

Can be altered by agreement (premarital or during marriage, parties conduct or how title was taken.

Question 2

Separate Properties

Answer 2

1. owned before marriage
2. acquired by gift, will or inheritance during marriage
3. property acquired during marriage with the expenditure of SEPARATE FUNDS
4. rents, issue and profits derived from SP

Question 3

Tracing or SOurce

Answer 3

Showing that separate property was used to purchase asset in marriage so purcahsed asset is separate property

Question 4

CP

Answer 4

property other than SP acquired during marriage . Most common examples are salaries or waves and income from community assets

Question 5

CP Presumption

Answer 5

all assets acquired during marriage are presumptively CP. absenet showing parties agreement or title was taken in a form that overcomes presumption must show.

Question 6

essay approach

Answer 6

CA is acommunity proiperty state

there is a community property presumption on all assets cuired during marriage unlesss there was a nagreement otherwise or title taken in separate form.

here are the types of SP

Question 7

when does economic community end

Answer 7

1. intent not to resuem marital relationship (only need intent of 1 party)
2. conduct consistent with that intent (separation is good enoguh)

Question 8

later being able to divide

Answer 8

if there is CP that’s not divided upon divorce, court retains continuing jurisdicition to aware CP not previously adjudicated. Will be divided 50/50 unless the interest of justice require an unequal division

Question 9

dividing CP

Answer 9

must be divided equally unless you have a settlemnet agreement

disparity in earning is only for spousal support and kid support

Question 10

non pro rata divsiion / economic circumstances exception

Answer 10

not dividing assets 50/50

e.g.

family home to mom

closely held corporation to the one that’s there

pension

Question 11

exception to 50/50 division

Answer 11

one spouse misappropriates CP before or during divorce

education debt

tort liability not based on activity for benefit of community

personal injury (CP but then awarded to the injuryed)

negative community - community liabilities > assets, relative ability of spouses to pay creditors is considered

Question 12

lifetime and testamentary gifts of CP

Answer 12

if gifting communitiy property, can set aside because you can’t give away community CP

or upon divorce one can take other CP that will offset

can also recover 50% from teh person the wrongful gift was made to or the estate of the decedent.

Question 13

lifetime and testamentary gifts of CP

Answer 13

if gifting communitiy property, can set aside because you can’t give away community CP

or upon divorce one can take other CP that will offset

can also recover 50% from teh person the wrongful gift was made to or the estate of the decedent.

EXCEPTION - government savings bond

Question 14

Widow’s election will

Answer 14

If a spouse wrongfully gives community property in will, must read the entire wil

Can take UNDER THE WILL (take whatever is in the will)

take against the will - claiming 1/2 interest in teh CP wrongfully transferred. This requires her to relinquish all testamentary gifts in her favor

To do this, just see what she’d get under the will (1/2 CP + spouse 1/2 CP), but not the wrongfully transferred asset. If taking against the will, you get 1/2 wrongfully transferred asset and only 1/2 CP

Question 15

community credit presumption

Answer 15

dunds borrowed during marriage and good spurchased during marriage are presumptively community credit

borrowed funds and credit purchases are classified accoding to the primary intent of the lender

Question 16

primary intent of the lender test

Answer 16

look to the primary intent of the lender in making the credit transaction to determin if the loan is SP or CP (e.g. is it secured by community property or SP)

Question 17

Fiduciary Duties

Answer 17

IF one spouse gains an advantage from teh transaction, a presumtpion of undue influence exists. That spouse must show didn’t breach duty.