Community Property 39-45 Flashcards
When will a Prenuptial Agreement be deemed Unconscionable?
If:
The terms are unfair; OR
If a spouse DID NOT know the extent of the other spouse’s property before signing the agreement.
Priority: Medium
When will a Prenuptial Agreement be deemed Involuntary?
It is deemed involuntary UNLESS a court finds all of the following:
The party (against whom enforcement was sought) was represented by independent legal counsel or waived counsel requirement in writing;
The party has not less than 7 days to review the agreement;
If unrepresented: the party (against who enforcement was sought) was fully informed of the terms and is proficient in the language used in the agreement; AND
The agreement was NOT executed under duress, fraud, undue influence, or lack of capacity.
Priority: Medium
Can creditor’s reach CP to satisfy debts incurred before or during the marriage?
Yes, including debts for child and spousal support. But, a non-debtor spouse’s earnings are protected if:
The debt occurred before the marriage; AND
The earnings were held in a separate account to which the debtor didn’t have access and no comingling occurred.
Priority: HIGH
SP can only be reached to satisfy a spouse’s own personal debts.
What are the TWO exceptions where both CP and SP can be reached to satisfy such debts?
Necessities: The community is obligated to pay for a spouse’s necessities during marriage. When separated = only obligated during emergency situations.
Tort Liability: If the debtor was acting to benefit the community when the tort occurred, then CP must be used before reaching SP. If debtor was not acting to benefit community, then SP must be used first.
Priority: HIGH
When can a creditor reach CP awarded to a spouse AFTER divorce?
When the spouse incurred the debt OR was assigned the debt by the court.
*A debt is incurred at the time the obligation to pay arises.
Priority: HIGH
How are assets divided upon divorce?
Each spouse gets ½ of each community asset UNLESS the court determines that the interests of justice require a different division.
Priority: Medium
What exceptions will change the division of assets upon a divorce?
Misappropriation by one spouse;
Separate debt;
Educational debts = assigned to spouse who incurred the education;
Tort liabilities = assigned to tortfeasor spouse if liability was NOT for community benefit;
Family home = awarded to spouse given custody; and
Closely held corporations.
Priority: Medium
