Characteriz Specific Interests

Question 1

Transferring assets

Answer 1

• one spouse’s SP asset that is put into the other’s name is a presumed gift to the spouse
• recipient spouse is presumed to own asset as SP
• transfer of prop from parent to married child is presumed gift
• other spouse has burden of proving not a gift by C&C

Question 2

life insurance

Answer 2

• measured by the inception of title rule (if woman takes out right before wedding, sep)
• if CP is used to make subsequent premium payments, there may be a potential reimbursement claim
• ownership determined when first payment is made
• if the C estate owns the policy, it may be fraudulent for a spouse to name another person as the B

Question 3

defined benefits plan

Answer 3

• document defines the benefits to be received upon retirement
• CP is pro-rated by the amount of time of services while married, over the total time of services for the company
• distributed through a Qualified Domestic Relations Order (QUADRO)
• — requires employer to make payments to the non- employee ex-spouse directly

Question 4

defined contribution plan

Answer 4

• document defines contribution
• CP is determined irrespective of vesting (employer’s matching may be subject to vesting requirements)
• use tracing to determine what amount of the increase is SP and how much relates to the dividends and interest which is CP

Question 5

military benefits

Answer 5

• subject to the Uniform Services Former Spouses Protection Act (USFSPA)
• allows state law to govern federal military benefits
• disability pay, under federal preemption, is separate property

Question 6

worker’s comp

Answer 6

• if the injury or loss of earning capacity occurred during marriage, the benefits received are CP
• if it occurred prior or after marriage, benefits are SP

Question 7

business interests

Answer 7

• the increase in value of sep prop is SP
• increase in value is attributable to the SP entity, or [un]/ under comepensated time, toil, talent, and effort of the spouse, the C estate has a reimbursement claim
• under CL, the calculation starts after the spouse has provided reasonable amount of time to preserve and protect sep prop
• under the statute, if a spouse who has control of the company under compensates himself, the C estate has a reimbursement claim for the amount of under compensation

Question 8

personal injury awards

Answer 8

• Compensation for PI is Sep prop
• damages for med expenses are CP
• Recovery for loss of earning capacity is Cp

Question 9

premarital agreements

Answer 9

• may agree to most things, but cannot agree to anything that:
  1) adversely affects child support or
  2) violates pub policy

Question 10

marital agreements

Answer 10

• consistent with fiduciary duties

- can partition and exchange existing prop and future prop including income from SP

Question 11

setting aside the agreement

Answer 11

1) execution was involuntary or
2) there was not full and fair disclosure, the right to receive disclosure was not waived, the spouse did not have adequate knowledge of the other spouse’s prop, AND the agreement is unconscionable
* unconscionability alone is not enough- can be enforceable if full and fair disclosure*