Community Property Flashcards
Does California recognize common-law marriages?
No, they are not permitted in CA. However, under the full faith and credit clause, common law marriages from other states
What grounds make a marriage void?
Incest, Failed to fully comply as per a contract, Generally bigamy but there are exceptions.
What makes a marrage voidable?
Bigamy exception, lack of consent, misrepresentation, fraud that voids consent
What is the putative Spouse Doctrine
Protects the innocent souse where they married in good faith.
What is Quasi-Marital property?
Property that would have been community property for a Putative Spouse
What are invalid aspects of a premarital agreement?
It may not govern child support or encourage divorce.
What is required for a prenuptial agreement?
Contract laws apply, except no need for consideration.
(1) in writing (statute of frauds)
(2) signed by both parties
Required for voluntariness in a premarital agreement
(1) represented by an independent legal counsel or waived in a separate document.
(2) the party had not less than seven days between the time the agreement was first presented and the time the agreement was signed.
(3) the party, if unrepresented, was fully informed of the terms and basic effect of the agreement and the rights and obligations he was giving up, and was proficient in the language in which the agreement was written,
(4) no duress, fraud or undue influence,
(5) Anything else the court finds relevant.
What is transmutation
Changing from CP to SP or SP to CP
What is required for transmutation?
After Jan 1, 1985, must be in writing with an express declaration by the adversely affected spouse.
Exception for gifts:
1. Between spouses
2. one spouses exclusive use
3. not a substantial value
Is a degree CP?
No
Is Buisness goodwill CP?
It can be if it was aquired as CP
How is a Tort Settelment distriibuted?
It is SP if the injury occurred before the marriage and CP if the injury occurred during the marriage.
However, at divorce, a court will award it to the injured spouse if not commingled, unless justice demands otherwise. Then they can give up to 50% to the noninjured spouse.
When does the Community End
The community ends when there is a complete and final break. Evidenced by:
1. At least one spouse has expressed intent
2. the spouse’s conduct is consistent with the intent to end the marriage
What are the methods of tracing?
Exhaustion & Direct Tracing
What is exhaustion?
In order to trace by exhaustion, the SP proponent must show that the CP funds were exhausted therefore requiring the use of SP.
What is direct tracing?
In order to establish direct tracing, the SP proponent must show:
- There were sufficient SP funds
- The Proponent intended to use SP funds
What is the presumption on title?
At death, the property is presumed to be the person on title, but this does not apply to divorce.
Is a spouse works in an SP business, how do the courts determine labor value?
Either Pereira or Van Camp
Peireira if the increase in value of the SP business is primarily due to the spouses personal skills and effort
Van Camp is increase is not
How does the Pereira Formula work?
SP = Initial SP + (Fair return x Years)
CP share = Fair Market Value - SP
How does the Van Camp approach work?
CP = Value of service - expenses paid from the business
SP Share = Fair Market Value - CP
