Community Property Flashcards
Community Property Rule Statement
CA is a CP state. All P acq during the course of marriage is presumed tb CP. All P acq before M or after div, death, or separation is presumed SP. In addition, any P acq during M by gift, bequest, or devise is SP.
The characterization of an asset depends on (1) the source of the item, (2) actions of the parties that may alter the character of the item, and (3) the statutory presumptions affecting them. A mere change in form of an asset doesn’t change its characterization.
At div, community assets are equally divided in kind, unless some special rule requires deviation from the equal division requirement or the S agree otherwise in writing or by oral stipulation in open ct.
Quasi Community Property
Property acquired by either S that would have been CP if the S had been domiciled in CA at the time of acquisition.
Effect on CP on Divorce
At div, the comm assets are equally divided in kind, unless some special rule reqs deviation from the equal division req or the Ss agree otherswise in writing or by oral stipulation in open ct.
QCP is treated as though it were CP at divorce.
Putative Spouse
A putative S is not legally M bc the M is void or voidable, but one or both parties believe in GF that the parties are legally M.
M can be found void/voidable for reasons such as bigamy or incest or voidable at the election of the interested party for reasons such as fraud, coercion, sexual incapacity, and lack of consent.
One party may be estopped to assert putative S status if the party making the assertation knew that the M was not valid or knew that it was invalid but acted as though it was valid.
Marvin Cohabitation Rule
Even tho cohabitation may be marriage-like, CA doesnt apply its CP law to persons who never evidenced any intention to enter into lawful marriage. Instead, CA applies gen contract principles. Even if couple lived together and eventually marries and later div, only P ace during marriage is distributed according to CP.
P acq during cohabitation is treated according to Marvin K rules. Cts should enforce express Ks between non marital partners except to the extent that such Ks are explicitly founded on consideration of sexual services. If theres no express k, a party may prove a k implied by the behavior of the parties, or an act of partnership or joint venture.
Premarital Agreements
A premarital agt is one made before M that’s to become effective upon M, in which parties agree to the characterization of their P and may limit support obligations. A preM agt is typically used to avoid the CP system and must meet stringent reqs tb valid. Child support can’t be waived. S support can be waived by agt if ind counsel rep S and not unconscionable.
Requirements for Premarital Agreement
Reqs for enforceable preM agt:
(1) it must not promote div;
(2) writing req;
(3) mb made vol; and
(4) must not be unconscionable.
PreM agts are deemed invol unless the ct finds (1) that the party against whom enforcement is sought was rep by ind counsel at time of agt was signed or advised to seek ind counsel and waived in writing; (2) presented w/ agt and advised to seek ind counsel 7 days before signing; (3) if unrepped by counsel mb fully informed in writing in language in which he is proficient; and not under duress, fraud, UI and didn’t lack cap
Source of Funds is CP/Title by one S
When source of funds for P is CP, but title is taken by one S only, the P will retain its characterization as CP, unless there’s a written transmutation.
Source of Funds is SP/Title Taken Jointly
When the source of funds for a P is SP, but title is taken jointly, its presumed tb a gift to the comm and characterized as CP, unless there’s a contrary written intent, subject to reimb at div
Transmutation
During marriage, the Ss may by agt change the status of of their P from SP to CP, from CP to SP, or from one S’s SP to the other S’s SP. These changes are transmutations.
To be valid, a transmutation mb made in writing and must expressly declare that a change in ownership is being made.
Duty to Other Spouse
Each S has fid duty to the other S to fully disclose all material facts about comm assets and debts; to provide equal access to all info upon req; to use highest GF and fair dealing w/ the other S; and never take unfair advantage of the other.
Management & Control of Personal Property
M&C of personal prop belongs to either S w/ absolute power of dispo, except S may not make a gift/dispose of community personal P for less than fair and reas value w/o written consent of other S. Each S can only dispose of ½ of their CP thru a test dispo. S may not sell or convey comm personal P used in fam dwelling, furnishings, clothing of children or other S w/o written consent of the other S.
Disability or Workers Compensation
Disability/WC classification depends on what it was intended to replace, regardless of when its actually paid. If intended to replace marital earnings, its CP. If intended to replace S’s income after separation, its SP.
Management & Control of Business
S who’s in charge of M&C a comm bus can make all bus decisions alone but must provide other S w/ written notice of a sale or dispo of all or subst all of the personal P used in bus ops.
Accounting for SP Business
If at div or death, the bus has appreciated in value or subst assets have been purchased w/ bus profits, the character of the bus and assets mb determined. To apportion between the SP component of the bus and the CP value added by the managing S’s labor during the M, cts have developed two different apportioning methods: (1) Van Camp accounting and (2) Pereira accounting method.
The bus mb valued as close as possible to the time of trial.
