Community Property Flashcards
CA comm. prop. intro paragraph
- CA is a comm. prop. state.
- In a comm. prop. state, the marital economic community begins upon marriage and ends at divorce, death of a spouse, or a permanent physical separation with an intent not to resume marital relationship.
- Property, earnings, or debt acquired during marriage are presumed to be community property.
- Property acquired by either spouse before marriage; by gift or inheritance during marriage; or after divorce or a permanent separation is presumed to be separate property.
- (OPTIONAL) Finally, property acquired by a married couple while living in a non-CP state that would be characterized as CP if the couple had been living in CA at the time of acquisition is called quasi-community property.
Married / domestic partnership
- Valid in CA, requires consent of 2 parties who have legal capacity
- Ok if valid in other state
Permanent separation
- Expressed intent to end marriage
- Conduct consistent with that intent
Putative spouse
Treat as marriage if there’s good faith belief
- Putative spouse entitled to CP upon death or divorce. BUT PS’ rights stop when she discovers marriage not valid
- One may be estopped from claiming putative spouse status if knew of invalidity of marriage
Unmarried cohabitants
K law applies
Premarital agreements
Allows couples to avoid CA comm prop system and agree to characterization of their own prop. Valid if:
- Doesn’t promote divorce
- In writing
- Signed by both parties
- Not unconscionable
- Not involuntarily made.
*Courts deem premarital agreements as involuntary unless:
- Repped by IC at time of signing
- Advised to seek IC within 7 days of signing
- If no IC, then fully informed of terms,
- No duress, fraud, etc.
- Any other factors
*Child/spousal support can’t be waived
*Defenses: laches and estoppel
*Usually a safe bet that agreement is not satisfactory but fully analyze
General presumptions rule
The source of funds and timing of acquisition determines the general presumption (rebutted by preponderance of evidence)
General presumptions: CP
CP = All prop, earnings, debt acquired during marriage
General presumptions: SP
SP = All prop acquired before or after marriage; by devise or inheritance or gift
General presumptions: QCP
QCP = all prop acquired during marriage while domiciled in non-CP state that would be CP in CA, is treated as CP
General presumptions: QMP
QMP = for putative spouses, prop acquired during a void or voidable marriage would would have been CP if marriage valid, is treated as CP or QCP
SPECIAL PRESUMPTIONS: form of title general rule
Prop’s form of title may rebut the original presumption as CP or SP when title is inconsistent with the original presumption.
SPECIAL PRESUMPTIONS: form of title AT DIVORCE
Title is generally irrelevant since courts will trace back to the source to determine its character.
*E.g., title is in W and her dad’s name but irrelevant because property was acquired during marriage, making it CP.
SPECIAL PRESUMPTIONS: form of title AT DEATH
Rule: The special title presumption assumes the form of ownership on the title at the death of one spouse represents the form of ownership interests of the spouses.
Effect: If the asset is untitled or titled in only one spouse’s name, then the asset may be considered SP if funds used to purchase the asset is SP (salary of one spouse is CP NOT SP)
*Can be rebutted by C&C evidence that both spouses had different intention
Jointly titled property (joint tenancy, TIC, TBE) (can be benefitted by SP but not required): Lucas (old law)
- Lucas (before 1/1/1984): At death of either spouse, all jointly titled prop presumed CP unless contrary express agreement.
Jointly titled property (joint tenancy, TIC, TBE) (can be benefitted by SP but not required): Anti-lucas (current law)
- Anti-Lucas/Special Community Property Presumption (after 1/1/1984): At divorce or legal sep., all jointly titled prop of spouses acquired during marriage presumed CP unless contrary written express agreement showing spouses’ intent to hold prop as SP.
*Spouse has a right to reimbursement for SP contributions to prop (DIP-down payment, principal, improvements)
Married woman’s special presumption
Prop acquired by a married woman in a writing, prior to 1975, is presumed to be her SP.
Tracing
When discussing characterization of prop, start with the source of the item (was it purchased with SP?.
- Then, trace the source if it changes form or identity. An item of property may go through several changes in form or identity. To earn full credit, you should analyze each change in form or identity.
Tracing two methods: Exhaustion
SP proponent must prove that CP funds in the account were already exhausted by the payment of family expenses when asset was purchased, thus only SP funds were available to purchase the property.
*Family expenses = food, clothing, housing
Tracing two methods: Direct
SP proponent must prove
- (1) there were sufficient SP funds available when asset was purchased and
- (2) he intended to use the SP funds to purchase the asset.
If its impossible to trace prop
Prop presumed to be CP
Tracing can’t
Overcome joint title presumption, but tracing always allowed for jointly held bank accounts (commingled funds–SP mixed with CP)
Transmutation rule
An agreement between spouses made during marriage to alter the ownership characterization of the property. (e.g., changing SP to CP).
Transmutation of real or personal prop valid if:
- In writing,
- Clearly describes change of ownership,
- Consent of adversely affected spouse
Transmutation exception
- Personal gifts from one spouse to another of insubstantial value, property will be SP of gifted spouse (no writing required
MANAGEMENT AND CONTROL: Fiduciary duties
- Full disclosure of material facts about comm. assets and debts
- Good faith and fair dealing with each other in mgmt and control of CP, never take advantage of each other
- Duty not to improperly sell, encumber or gift CP.
