Community Property 2 Flashcards
(Pr acquired from) Debt during M: +CA +CCA.
presumed community loan-CP.
CA: REBUT by showing PRIMARY INTENT of the LENDER in making the loan was to RELY on Debtor’s SP.
CCA: REPUTATION & Creditworthiness are CP!
ORAL AGTs to Change the character of Pr are ENFORCED if:
[ORAL Prenuptial Agt]
1) Fully PERFORMED or
2) Detrimentally RELIED on
Prenup is INVALID if it …:
limits CHILD Support Obligations =UNwaivable! [unlike Spousal Support]
PRENUPS must be in Writing & Signed by BOTH Spouses to be Enforceable. But 2 DFNs make even Written Prenups UNENFORCEABLE if …:
1a) UNCONSC. TERMS AND
1b) ASSETS not Fully DISCL.
2) Or it wasNOT VOL. SIGNED =PRESUMED, UNLESS
2a) was INDEP. REPR’d Or
2b) WAIVED it in writing AND had 7d [cooling off] to sign
3) +IF yes UNrepresented: was FULLY INFORMED of all Prenup’s TERMS.
Pre-1985 Transmutation AGT made During M …:
could be 1) ORAL 2) Written or
3) INFERRED from CONDUCT.
Since 1985, a TRANSMUTATION AGT made during M requires … +CAx2:
1) a WRITING Signed by the S ADVERSELY AFFECTED [No SOF DFNs apply] &
2) an EXPRESS STATEMENT of the CHANGE in Pr Ownership.
CA1: PERSONAL GIFT of rel. UNsubst. value w.r.t. to Couple’s financial circ.
CA2: WILL ['’All my Pr is CP”] is INadmiss. ev. b/c effective only AFTER Death.
SP funds used to IMPROVE CP:
Analyzed under ANTI-/Lucas: At DIVORCE 1984+: SP funds for DIP: must be REIMBURSED w/o INTEREST. Else & Pre-84 & still at DEATH: SP funds presumed GIFT =>no REIMBURSM. rights.
CP funds used to IMPROVE SP … :
(own SP & other spouses SP
–b/c gift is no longer presumed):
1) SP character REMAINS.
2) But CP has a REIMBURSEMENT CLAIM for the GREATER of the:
a) COST of improvement Or
b) INCREASE in the SP’s Value.
Under Marriage of MOORE,
if CP funds are used to PAY DOWN a SP Mortgage …
+CA:
the Community’s Pro-Rata OWNERSHIP interest is PROPORTIONAL ONLY to the REDUCTION of the PRINCIPAL DEBT. => Pro-Rata share =(Principal Debt Reduced by CP)/ (Purchase Price) =Buy-In Rule
CA: NOT included are: TAX, Maintenance, etc.
- *If CP labor increases a SP business’ value
(i. e., not a CP biz started during the Marriage!):
CP shares in the APPRECIATION of the SP Business’s Value.
There are 2 methods: Pereira & Van Camp. (…)
PEReira:
If Primarily PERsonal Labor increased the Value of the SP biz. during M then …:
1) SP is entitled ONLY to the ORIG. investment PLUS a fair SIMPLE (typical 10% r.o.i.) interest rate
2) the REST of the biz’ value goes to CP.
**Van Camp accounting method is used if it was primarily CAPital that enhanced the SP business’ value, not the Spouse’s Ordinary work. Then
CP receives only a FMV Salary LESS Community Expenses ALREADY Paid. The REST of the biz’ Value goes to SP (favors SP owner).
Here, if van Camp accounting were …
COMMINGLING of SP & CP in Bank Account … +BOP:
1) SP isNOT AUTOMATICALLY transmuted into CP.
2) BOP is on SP Proponent-Owner to show that the Funds used to Acquire the Pr were SP.
3) Allowed TRACING methods are:
a) Direct tracing b) Family expense method …
Direct Tracing.
SP owner must show:
1) INTENT to use SP funds from the Commingled Account &
2) Sufficient SP funds were THEN AVAILABLE.
FAMILY EXPENSE Method.
CP presumably pays for family expenses …:
until all CP is EXHAUSTED. Then, logically, SP funds MUST have been used to Acquire the Pr.
All Pr acquired during M until LEGAL SEPARATION is presumed.
CP
Post-1987:
all Pr held by Spouses in JOINT FORM is … ?
all [TIC, JT, CP] is PRESUMED CP
=The ‘87 ANTI-Lucas PRESUMPTION
Under LUCAS Pre-84 & still at DEATH,
SP funds used to Acquire JOINTLY TITLED Pr …
+If REBUTTED… :
are presumed a SP GIFT to the Community w/o Tracing /REIMBURSEMENT rights. (=Lucas Gift pres.)
CA: by an ORAL /Written Agt: SP receives a Pro-RATA share.
JOINTLY HELD TITLE is presumed CP at DIVORCE /Legal SEPARATION 1984+. BUT …CA2x:
Cf: If UNTITLED …:
CA1: SP Contributions to DIP (DownPaym., IMPROVEMENTS, or PRINCIPAL) must be REIMBURSED w/o INTEREST.
CA2: If Rebutted by a St. in a DEED /the TITLE itself /an express WRITING (showing a Valid Transmutation), then: SP gets a pro-RATA share.
Cf: If UNTITLED: No Anti/Lucas =>Use regular SOURCE rule.
*Married WOMANS’ SPECIAL Presumption 1) if a Married Woman …:
+2) H can REBUT by …:
+3a) If taken as “H&W” …
+3b) If W & H(or 3P) took JOINT title…:
acquired Pr in her NAME Pre-1975, it was Presumed her SP.
2) a WRITING indicating otherwise, BUT CONCLUSIVE as to BFPs.
3a) 1/2 is W’s SP & the other 1/2 is CP =>W gets 75%.
3b) TIC w/ the 3P is presumed.
