Community Property Flashcards
Is California a Community Property State?
Yes, California is a community property state.
The marriage is viewed as a community and each spouse is equal in that community.
Characterization of property owned before marriage
Separate Property is the categorization of property owned separately before a marriage.
Factors when determining characterization of property?
How the asset was acquired.
When the asset was acquired
Action / Agreement to change characterization
Legal presumptions
Community Property is governed by CFC unless
The CFC or California Family Code governs property except when there is a premarital or marital agreement.
Define Property
Property means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
Ex: IRA, Cars, Bank accounts.
Define Separate Property
FC Sec 770 - Separate property of a married person includes all of the following:
All property owned by the person before marriage.
All property acquired by the person after marriage by gift, bequest, devise, or descent.
The rents, issues, and profits of SP are SP.
When is the Date of Separation?
The date that a complete and final break in the marital relationship occurred.
Must have expressed to the other spouse and intent to end marriage.
AND
The conduct of the spouses is consistent with the intent to end the marriage.
Define Community Property
Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person, during the marriage while domiciled in this state is community property.
What does a spouse need to do to prove/challenge property
A spouse challenging the CP presumption has the burden of proof to establish separate character.
Preponderance of the evidence.
Define Quasi-Community Property
Applies to all real or personal property no matter where it is located.
Property acquired in a non-community property state that would have been community property if acquired in California. OR
Property acquired in exchange for property that would have been community property if acquired in California.
What is tracing used for?
Tracing is used to characterize the community and separate property portions of the parties accounts.
Common law marriages
California has abolished CL marriages.
California will recognize a foreign CL marriage.
Putative Spouse
When a marriage is void or voidable but the court finds that either party or both parties believed in good faith that the marriage was valid, the court will declare the relationship that of putative spouses.
Quasi-Marital Property
Any property acquired that would have been community or quasi-community property if the marriage had not been void or voidable.
Marriage by Estoppel
A marriage by estoppel allows for the CP protections to attach to an otherwise invalid marriage if one party induces the other party into marriage, knowing that the marriage is invalid, by making promises that are subsequently not kept.
Cohabitation
Unmarried cohabitants ordinarily have no CP rights absent some enforceable agreement. All property is presumed to the be SP of each and the manner in which title is held presumptively controls.
Marvin Actions
Marvin v Marvin, the court held that parties can contract with each other to create a support obligation or other ownership relationship.
Domestic Partnership
Two adults in a committed, intimate relationship of mutual caring.
Same rights as same sex marriages.
Four ways spouses can hold property in joint forms
Joint tenancy
Tenants in common
Community property
CP with right of survivorship
Joint tenancy
Common form of ownership among married couples in Cali because of survivorship feature.
If one holder dies, the other title holder takes the whole property without having to go through probate.
Defeating the Presumption for property
A clear statement in the deed or other documentary evidence of title that the property is SP and not CP;
OR
Proof that the parties have made a written agreement that the property is SP.
Lucas doctrine pre-1984
Pre-1984 ears transmutation allowed property to be transmitted by oral agreement.
Absent any agreement to the contrary, presumed CP but could be overcome by an oral argument.
Right to Reimbursement
FC 2640 provides that at divorce, a party shall be reimbursed for his or her SP contributions to acquisition of CP to the extent he or she can trace the contribution to SP sources.
w/out interest
CP contributions
DIP
Down payments
Improvements
Principal payments on mortgage.
