Community Property

Question 1

Intro Paragraph

Answer 1

California is a community property state. All property, earnings, or debt obtained during the marriage are presumed community property. Property acquired before marraige or after separation, or at any time by gift or inheritance is presumed to be separate property

Question 2

Marital economic community

Answer 2

begins upon marriage and ends at divorce, death of a a spouse, or separation.

Question 3

Quasi community property

Answer 3

QCP is property acquired by a married couple while living in a non CP state that would have been characterized as CP if the couple had been living in CA at the time of acquisition. Quasi community property is treated as CP at death or divorce.

Question 4

Valid marriage

Answer 4

[CCC]
a valid marriage requires consent, capacity, and compliance with legal formalities
Common law marriages are not recognized in california uness they were valid elsewhere when entered

Question 5

Registered Domestic Partners

Answer 5

a domestic partnership is treated under cp rules if there are two people who could otherwise be married and share an intimate and committed relationship. Must be registered.

Question 6

Putative spouse

Answer 6

a putative spouse is one who believed in good faith that a void or voidable marriage was valid. property acquired before notice of the invalid marriage is treated as quasi marital property.
a putative spouse ahs the same rights as a surviving spouse, and if there is a putative and a legal spouse, the estate is split equally

Question 7

Void marriage

Answer 7

never legally existed due to incest, bigamy, or not lawfully made

Question 8

Voidable marraige

Answer 8

can be annulled due to underage, unsound mind, fraud, duress, bigamy based on error about death

Question 9

Unmarried cohabitants

Answer 9

CP does not apply, distribution of proerty coverned by contract principles, contracts enforced unless based upon sexual services

Question 10

Special presumption of title

Answer 10

at death the form of title is the presumptive form of ownership

Question 11

Special presupmtion of community property

Answer 11

jointly held property is presumed to be CP, rebuttable with written evidence

Question 12

contributions of SP to CP

Answer 12

before 1984, contriubtion of SP to CP is presumed to be a gift
after, there is a** right to reimbursement**

Question 13

Community proeprty with right of survivorship

Answer 13

treated as CP at divrose but treated light a joint tenancy at death, with an automatic transfer to surviving spouse to avoid probate

Question 14

Tenancy in Common

Answer 14

at divorce, treated like CP per the special presumption of CP but at death, per the special presumption of title, treated like tenancy in common

Question 15

Pre martial agreement

Answer 15

must satisfy SOF and signed by both parties
can determien property rights and spousal supports but NOT child support

Question 16

Presumption of involuntariness

Answer 16

a premarital agreement is presumed to be involuntary unless
1) independent counsel or signed waiver at least 7 days before signing
2) party had 7 days to seek counsel before signing
3) if not represented, party was fully informed
4) both parties had capacity
5) agreement not signed under duress, fraud, undue influence
[I’s FC’D]

Question 17

Unconscionable Martial Agreement

Answer 17

lack of fair, reasoanble, and full disclosure of assets and obligations, disclosure not waived in writing, and could not have reasonably had knowledge of the assets and obligations

Question 18

Transmutation

Answer 18

trasmuting CP to SP or vice verse must be in writing with an express declaration by the adversely affected spouse, except for the gifts exception

Question 19

Gifts exception

Answer 19

a personal gift of insubstantial value does not require a writing to be a valid transumtation

Question 20

Separation agreements

Answer 20

spouses cannot alter marital status but can settle property rights, custody, and spousal support

Question 21

Rebutting Presumptions

Answer 21

general presumptions such as the general CP and SP presumptions can be rebutted by preponderance of the evidence.
Special presumptions, like the special presumption of title or the special presumption of CP require clear and convincing evidence

Question 22

bank account

Answer 22

how a bank account is titled does not determine the character of the funds.
If commingled funds, presumped that CP funds withdrawn first

Question 23

Direct tracing

Answer 23

to show that SP funds were used, spouse must show that SP funds were available at the time and that they intended to use SP funds

Question 24

Exhaustion Tracing

Answer 24

to show SP, must show that CP funds in account were exhausted by family expenses at the time of the purchase.

Question 25

Goodwill of business

Answer 25

the reputation and future earnings of a CP business is a CP asset. Valuation is calculated through market sales or comparing past excess earnings to peer businesses

Question 26

Degrees and professional licenses

Answer 26

not a CP asset
reimbursement: community may be reimbursed for CP contriubtions to direct or training expenses if earning capacity was substnailly improved
defenses: community substantially benefited (presumed if more than 10 years) other spouse also received an education, or reduced need for spousal support

Question 27

Retirement pensions

Answer 27

vested and unvested pensions are treated as CP. if spoues is no eligible upon divorce, the portion attributable to CPmust be calculated

Question 28

Calculation for retirement

Answer 28

time rule: allocaiton depends on number of years married v unmarried
diirect contriubtions: how much was contributed while married v unmarried

Question 29

Distribution methods for retirement

Answer 29

division in kind: court reserves jdx to supervise payment upon retirement
cash out: value is determined by ane xpert and cashed out upon divorce

Question 30

timing of retirement

Answer 30

early retirement: any enhanced benefit is CP property
delayed: if a spoues refuses to retire once eligible, other spouse must be paid division in kind

Question 31

Stock options

Answer 31

CP if granted and vest during marriage
CP/SP if granted during marraige but vest after separation, determined based on whether stockw as a reward for past service or incentive for future

Question 32

Hug formula

Answer 32

compensation for past service
CP= (Date of hire- date of separation)/ (date of hire - date of vesting) * number of sharees

Question 33

Nelson formula

Answer 33

incentive for future employment
CP= (Date of grant - date of separation)/ (date of grant - date of vesting) * shares

Question 34

Disability pay

Answer 34

pay that replaces compensation or retirment is CP
pay that replaces lost future earnings may be SP depending on timin gof separation

Question 35

Term life insurance

Answer 35

At death, the last premuim paid determines the characterization

Question 36

Separate property business

Answer 36

courts have discretion to calculate the CP share in a SP business based upon the contribution of labor by the employee spouse.

Question 37

Pereira Formula

Answer 37

favors CP, use if spouse’s effort was the cause of the increase of business
SP=value at marriage +(value at marraige * 10% * years of marriage)
CP=FMV-SP

Question 38

Van CAmp

Answer 38

favors SP, use if market forces primarily affected value of business
CP=(reasonable value of services - annual family expenses) * years of marriage

Question 39

Reverse Pereira and Van camp

Answer 39

if the business appareciates after separation but before divorce, contribution is calculated by applying the formulas in reverse

Question 40

Credit purchases and loan proceeds

Answer 40

presumed to be CP when the lender does not rely solely on purchaser’s SP in extending credit

Question 41

SP used to improve SP

Answer 41

must be reimbursed

Question 42

SP used to improve CP

Answer 42

must be reimbursed

Question 43

CP used to improve spouses own SP

Answer 43

community has right to reimbursement or the enhanced value of the propery

Question 44

CP used to enhance other spouses SP

Answer 44

community has the right to reimbursement; if it enhanced value, community is entitled to proportionate interest

Question 45

Personal injury recovery

Answer 45

injury before marriage: tort recovery is SP, but must reimburse if CP is used to pay injury expenses
injury during marriage: recovery is CP, but at divroce, awarded to spouse

Question 46

Liability

Answer 46

community is liable for debts of either spouse before or during marriage
a spouse is liable for her own debts incurred before or during marraige, or other spouses debt incurred for neccessaries of life, but not liable for the other spouse’s premartial debts
Tort obligations: if committed for benefit of community, paid first from CP then tortfeasors SP, but if not for benefit of community, paid first from tortfeasors SP then CP.

Question 47

Managment and Control

Answer 47

each spouse has equal management and control over CP
exceptions: bank accounts limited to party named

Question 48

Gifts to third parties

Answer 48

a gift of CP requires the written consent of both spouses. An unauthorized gift can be either ratified or revoked by the non consenting spoues

Question 49

Household goods

Answer 49

a spouse may not sell, convey, enumber household furnishings or clothing without written consent of other spouse

Question 50

Community businesss

Answer 50

the managing spoues has primary control, but must give prior written notive for major actions

Question 51

Real property management

Answer 51

each party has equal management and ctonrol
any transfer must be in writing and signed by both spouses
title in one name: transaction is presumed valid if bona finde purchaser did not know seller was married; may not void beyond a year but may seek an accounting to recover value
title in both: both spouses must sign

Question 52

Quasi Community property management

Answer 52

the record owner has exclusive management and control and right to transfer it
transfer to third party: if the record owner retained rights or interests when transfering to a third party as an unauthorized inter vivos gift, AND dies** domiciled** in CA, the non consenting spouse may recover up to one half the value

Question 53

Fiduciary duty

Answer 53

spouses have the highest duty of good faith in management and control of CP, including the duty to disclose, to account, and to obtain consent
REmedies include injunctions right to an accounting, or getting a greater share of the CP

Question 54

Community property mortgage payments on SP

Answer 54

the community acquires an interest in the property to the extent that mortgage payments are made tot he principal

Question 55

Division on divorce

Answer 55

absent agreement, CP and QCP will be divided equally
exceptions: dbreach of fiduciary duties, tort liability, personal injury damages, debts

Question 56

Division at Death

Answer 56

intestate: suriving spouse receives all CP, and separate property gets 100% (no descendants or parent/sibling), 50% (one parent/sibling/child) or 1/3 (more than one child)
testate:
only the decedants half of CP is subject to disposition by will, but joint tenancy properties go automatically to the spouse