Characterizing Property - Actions

Question 1

Commingling - Bank Accounts

Answer 1

C-JAC-ReCC-WARR (Character Joint Account CP Rebut Clear Convincing Written Agreement Rebut Reimburse)

1. Character of funds controls, not title;
2. Joint account presumed CP;
3. Rebut with tracing by C&C; or
4. Written agreement after 1/1/85;
5. If not rebutted, SP reimbursed P&I (Lucas gift)
6. Separate account only need BEP to show SP.

Question 2

Commingling - Life Insurance

Answer 2

DIWPTAV - (Death Irrelevant Whole Premiums Term Attempt Value)

1. Death (type irrelevant) - SP/CP premiums paid;
2. Whole life at divorce - premiums paid;
3. Term life - either no asset or attempt to value right to reinsure - premiums.

Question 3

Value Enhancement - SP Business - ROR

Answer 3

pReiRa = RoR - favors labor because balance goes to CP.

1. Pereira (1909);
2. Favors growth due to community labor;
3. Beginning value of business + reasoanble ROR = SP;
4. Balance is CP.

Question 4

Value Enhancement - SP Business - Reasonable Value of Services

Answer 4

Van is collectors item, so it grows on its own, thus we calc a salary and five balance to SP.

1. Van Camp (1921);
2. Favors growth due to capital growth of SP asset;
3. Fair salary x years of marriage - already received = CP;
4. Balance is SP.

Question 5

Value Enhancement - CP Business Increased Value Post-Separation - Capital Investment Increased

Answer 5

1. Reverse Van Camp;
2. Fair value for services - already paid = SP;
3. Balance is CP.

Question 6

Value Enhancement - CP Business Increased Value Post-Separation - SP Effort Increased Value

Answer 6

1. Reverse Pereira;
2. CP investment + ROR = CP;
3. Balance to SP.

Question 7

Transmutation - Prenuptial Agreements

Answer 7

SEFUPWU-I7 -(Statute Estoppel Full Unenforceable Promote Waiver Unconscionable Involuntary 7d)

1. Statute of Frauds;
2. Exceptions for full performance or estoppel;
3. Unenforceable if:
4. Waive or limit spousal support not per se unenforceable;
5. Promotes divorce;
6. Involuntary (waived, 7 days advised to seek counsel in writing and signed); or
7. Unconscionable (nondisclosure of wealth or unfair).

Question 8

Transmutation - During Marriage

Answer 8

BOSEDETIW (Before Oral Signed Express Declaration Exception Tangible Insubstantial Wills)

1. Before 1/1/85 - Oral enforceable w/ evidence;
2. 1/1/85 and later - signed writing, express declaration giving up rights;
3. Exception for insubstantial tangible property of personal nature used solely by spouse;
4. Statements in wills unenforceable (ambulatory - SOF not satisfied).

Question 9

Apportionment of Real Estate

Answer 9

1. CP funds used to make principal payments on SP property mortgage;
2. entitled to pro rata ownership interest
3. SP funds on CP mortgage entitled to reimbursement under FC §2640;
4. SP funds on SP mortgage are a Lucas gift unless otherwise agreed in writing.

COSCRUALSS (CP Ownership SP CP Reimbursement Unless Agreed Lucas SP SP)

COSR-SLW

Question 10

Improvements on Real Estate

Answer 10

1. CP used to improve SP property;
2. Community entitled to greater of reimbursement or value appreciation;
3. SP funds on CP property, reimbursement under FC §2640;
4. SP on SP, Lucas gift unless agreement to contrary.

CRASCRUALSS (CP Reimbursement Appreciation SP CP Reimbursement Unless Agreement Lucas SP SP)

CAR-SR-SL