COMMUNITY PROP

Question 1

Division at Divorce

Answer 1

equally divided in kind unless special rule requires division or spouses agree otherwise

Question 2

Transmutation

Answer 2

During marriage, spouses may change character of an assett

Writing

Stated (Declare Change in Ownership)

Consent

Exception: gifts between spouses of personal nature, used principally by spouse given to, and not substantial in value

Question 3

Fiduciary Duties of Spouses

Answer 3

If one gains advantage from transaction, presume undue influence

also if grossly negligent and reckless investment

Question 4

Education Expenses

Answer 4

Reimbursement when substantially enhances earning capacity

Exceptions

• more than 10 years
• other spouse got too
• decreased need for spousal support

Question 5

Community labor used to enhance value of SP business

Answer 5

Apportion bw SP and CP component

Van Camp: market salary - family expensess = CP

Perreia: SP * interest = SP

Question 6

When does seperation occur

Answer 6

expresses intent

&

conduct consistent w that intent

Question 7

Debt incurred during marriage

Answer 7

All CP & debtor spouses SP liable

SP of other spouse noit laible

Question 8

Premarital Agreement

Answer 8

writing

voluntary (counsel or advised to seek and given 7 days, expressly waived, and knew full extent of agreement)

not unconscionable (judge finds unfair, didnt know full financial situation)

Question 9

Debts after seperation for common necessities of life

Answer 9

Each spouse remains personall liable

Question 10

Putative Spouse

Answer 10

good faith & subjective belief that he or she was lawfully married

quasi marital property

other spouse estopped

Question 11

Child support

Answer 11

treated as incured before marriage, reimbuse community if SP was available but paid w CP

Question 12

Essay Analysis

Answer 12

Presumptions (6)

Issues that affect all (transmutations etc.)

Each item of prop

Question 13

Each item of property analysis

Answer 13

Source

Actions

Presumptions / special rules

Distribution

Question 14

How to determine character of an asset?

Answer 14

tracing

Question 15

Stock Options

Answer 15

if awarded but not vested – proration formula, primary intent of er

1) deffered compensation/bonus - Marriage of Hug

years employed during marriage / years from emp until exercisable

2) to encourage to remain with company - marriage of Nelson

years from granted until community ends / years from granted to exercisable

Question 16

Title taken in joint form

Answer 16

death - Lucas: presumed gift, no reimbursement

divorce - reimbursement for DIP (down payment, improvements, principal payments on mortgage), no interest

Question 17

Property taken in joint title – allocation at divorce or death

Answer 17

death - Lucas: presumed gift, no reimbursement

divorce - reimburse for DIP (down payment, improvements, principal payments on mortgage)

Question 18

Commingled Bank Accounts

Answer 18

burden to show each assett bought w SP

presume family expenses bought with SP unless 1. exhaustion 2. direct tracing (quick in quick out)

Question 20

Property held by spouses in joint form

Answer 20

presumed to be CP

Question 21

Gift of CP to third party

Answer 21

must not make without other spouses written consent

during donor’s lifetime, wronged spouse may move to set aside transfer and compel return of the entire property

Question 23

Marital Community Duration

Answer 23

Bengs at marriage and endss at one spouse’s death or on the date of seperation

Question 24

Express contracts between nonmarital partners

Answer 24

Courts should enforce

Except to the extent that founded on consideration of sexual services

Absent k, party may prove one implied

Question 25

Allocating Debts at divorce

Answer 25

Distinguish: allocable to community or spouse as seperate obligation?

Seperate debts incurred before marriage: assigned to spouse that incurred, without offset

if not assigned or incurred, not personally liable

Question 26

Goodwill Measurement

Answer 26

market value (what a buyer would be willing to pay)

capitalization of excess earnings

Question 27

Settlement for past salary

Answer 27

Look to replacement function

If intended to replace wages earned during marriage = CP

Question 28

Premarital Agreement Requirements

Answer 28

Writing

Voluntary

Not unconscionable

Question 29

When is a premarital agreement voluntary

Answer 29

represented by counsel or

advised to do so

7 days before

waived

informed in a seperate writing of the nature of the agreement

Question 30

When is a premarital agreement unconscionable

Answer 30

unfair and

not fully advised of financial status of the other party

and could not reasonably have found out on her own

Question 31

Awarding QCP at divorce

Answer 31

if possible, court will divide in such a way that it i snot necessary to alter the nature of the out of state realty, such as awarding 1/2 to each and leaving tenancy in common in tact

Question 32

Pension

Answer 32

“time rule” - what was earned during marriage?

Question 33

Life insurance

Answer 33

Term: final premium rule (which paid last payment)

Whole life insurance: % paid by community

Question 34

Overcoming CP presumption for property acquired during marraige

Answer 34

1. statutory fact (gift, devise, etc)
2. agreement
3. joint form other than CP
4. gift
5. tracing

Question 35

Joint bank account

Answer 35

tracing allowed

1. exhaustion method
2. direct tracing

Question 36

Perreia Payment

Answer 36

Pay interest on SP; the rest is CP.

dont subtract family expenses

Question 37

Van Camp

Answer 37

Value of Community labor- Community Expenses; the rest is SP.

Question 38

CP used to improve own SP

Answer 38

reimburse

Question 39

CP used to improve other spouse’s SP

Answer 39

gift presumed

Question 40

Setting aside CP distributions after divorce

Answer 40

473(b): most liberal, 6 months after judgment unless exitrinsic fraud, extrinsic mistake, or duress

Family Code: relief after 6 months