Characterisation of Property Flashcards
Original general presumption: source of property.
To determine if a piece of property is SP or CP, first determine the source of the funds used to acquire the property and the timing of the acquisition.
Separate property
Is property that is owned by either spouse before the marriage, a devise or bequest given to one party, or a gift given to one party.
Tracing? What is the exhaustion method? Direct tracing method?
When property is acquired using funds from a commingled account, the burden of proof is placed on the SP proponent to show that SP funds were used to purchase the asset. The SP proponent must be able to trace the funds back to a SP source using one of the two following methods: the exhaustion method or direct tracing method.
Exhaustion method: Under the exhaustion method, the SP proponent must prove that CP funds in the account were already exhausted by the payment of family expenses at the time that the asset was purchased.
Direct tracing method: Under the direct tracing method, the SP proponent must prove that there were sufficient SP funds available at the time that the asset was purchased and that she intended to use the SP funds to purchase the asset.
Community property presumption?
Property acquired during the marriage
Anything in exchange for labor performed during the marriage
Commingled funds or commingled property
How can you rebut a CP presumption?
By showing SP source through tracing.
By showing SP character of asset.
By showing an agreement.
What are title presumptions?
The special title presumption presumes that the form of ownership on the title represents the form of ownership interests of the spouses.
The form of title for a piece of property may rebut the OG presumption as CP or SP when the title is inconsistent with the OG presumption.
What is the presumption if title is in one spouse’s name?
The court may consider the asset to be SP if the source of the funds used to purchase the asset was SP.
What is the presumption if the property is jointly titled?
Property that is jointly-titled is presumed to be CP upon death or divorce even if paid for with SP.
Jointly Titled Property benefitted by expenditures of SP.
The rules differ depending on whether the marriage ends in death (Lucas) or divorce (Anti-Lucas)
What is the Lucas rule?
All jointly-titled property of either spouse is presumed CP at the death of either spouse, unless there is an express agreement to the contrary.
No right to reimbursement for SP contributions
What is the anti-lucas rule?
At divorce or legal separation, all jointly titled property of the spouses is presumed to be CP, unless there is an express agreement to the contrary.
Right to reimbursement: any SP used to purchase the asset is reimbursed upon divorce to the SP contributor without interest.
