Characterization of Property Flashcards
Define
Distribution upon Divorce
Upon Divorce, all CP assets are divided equally between the spouses based on an item theory of distribution.
When will income disparity between spouses be considered upon divorce?
Disparity in earning power is only considered in determining spousal support.
List the types of property a court will deviate from equal divison upon divorce.
- Family Residence
- Shares of a closely held corporation
- Pension benefits
- Artwork
- Shareholder voting control
List the exceptions a court would deviate from equal division of property upon divorce.
- Misappropriation of CP by one spouse
- SP debts assigned to the debtor spouse
- Tort liability to tortfeasor spouse
- Personal injury recovery awarded to injured spouse
- Negative community assigned to one spouse
Define
What a spouse can distribute at death
Under a will
At death, a spouse can transfer all of their SP and 1/2 of their CP by will.
Define
Distribution by Intestacy
If a spouse dies intestate, their 1/2 interst in CP passes to the surviviong spouse and the surviving spouse’s share of decedent’s SP depends on the number of heirs that survive decedent.
SS gets their 1/2 CP and decedent’s 1/2 of CP and gets
- all of SP if no surviving heirs.
- 1/2 of SP if one surviving heir
- 1/3 of SP if more than one surviving heir
What are creditors rights when it comes to debts within a marriage?
A creditor can reach a debtors spouse’s SP and all of the CP to satisfy debts incurred before and during marraige.
After divorce or legal separation, a creditor cannot reach the CP awarded to a spouse unless that spouse incurred the debt or was assigned the debt by the court.
What is a non-debtor spouse liable for?
CP earnings of a non-debtor spouse are not liable for debt incurred before marriage if the earnings are held in separate bank account.
But the non-debtor spouse may be liable for debts of necessaries during marraige (Ex. food, clothing, shelter, medical expenses).
The non-debtor spouse can only be reimbursed if CP and SP funds were available at time of divorce.
When is a debt incurred in relation to tort and contract liability?
Debt is generally incurred at the time the obligation arrises
- Tort: when tort occurs
- K: When K was entered into
Child/spousal support from a prior relationship is treated like SP debt incurred before marriage.
What happens with personal debt upon divorce?
Upon divorce, the spouse is personally liable for debts that they incurred or any debts that were assigned to them by the court.
What are the reimbursement rights of a non-debtor spouse?
Non-debtor spouses are reimbursed for CP used to pay child support from previous relationship if the debtor spouse had SP funds available at the time to pay the debt.
Non-debtor spous is reimbursed for SP funds used to pay for debtors spouse’s necessaries if the debtor spuosue had SP or CP funds available at the time to pay the debt.
When is property subject to tort liability?
**CP is subject to tort liablity of either spouse.
If a tortfeasor was acting for the benefit of the community, liablity is:
1. First satisfied from CP and
2. Second from the tortfeasors SP.
If tortfeasor was not acting for the benefit of the community then the liablity is:
1. First satisfied from the tortfeasors SP and
2. Second satisfied from the CP.
Explain
Unmarried couple’s property rights
In California, a lawful marraige requires (1) legal capacity and (2) the performance of formal legal procedures.
Without a valid marraige, couples do not have shared property rights.
Unmarried cohabitants
General contract rules apply to unmarried cohabitants.
If there is no express K, cohabitants may prove implied K by conduct to prevent unjust enrichment.
If married later, the K will apply to all property acquired prior to marriage and CP presumption will apply after marriage.
How do you qualify as a punitive spouse?
To qualify as a punitive spouse, a person must have good faith belief based upon an objectivly reasoanble grounds that she is lawfully married, but once that perons discovers that the marriage is invalid, ther quasai-marrital propery rights no longer accrue.
