Community Property

Question 1

Living separate and apart refers to a situations in which:

Answer 1

1) living in separate residences and
2) At least one spouse has subjective intent to end marital relationship (intent
is objectively evidenced by words or conduct reflecting complete/final
break in marriage

Question 2

Living Separate and Apart Factors

Answer 2

1) under 1 roof? ͞living apart physically is an indispensible threshold req, but Davis left open possibility of living in sep residences under one roof
2) Econ circ – one spouse still supporting the other?
3) Sexual relationship?
4) Held themselves out as married?
5) Filing for divorce is not itself enough to show intent to end marriage

Question 3

CP includes…

Answer 3

all real or personal prop that is:

1) Not SP and
2) Acquired during the marriage
3) By a married person
4) While domiciled in CA

Question 4

Separate Property includes

Answer 4

1) Prop owned b4 marriage;
2) Prop acquired during marriage by gift, bequest, devise, or descent;
3) Prop acquired during marriage but while spouses are living sep/apart
4) Rents, issues, profits of prop falling into above categories

Question 5

Property Division at Divorce - Generally

Answer 5

1. CP assets and liabilities are divided equally (50/50)

2. SP assets and liabilities go to the spouse they belong to

Question 6

General CP Presumption

Answer 6

1. Prop acquired during marriage

2. Prop is untitled OR titled in one spouse’s name

Question 7

Tracing Principle – fruit of the Tree Approach

Answer 7

Generally, classification of prop depends on funds, not title.
To determine prop character, trace the funds used to acquire it back to its original source.

Question 8

Pre-1985 (“easy transmutation era”)

Answer 8

oral or conduct-based transmutation permissible.

Question 9

Requirements for Valid Transmutation - post 1/1/85

Answer 9

1. Writing; need only be made/join in/consented to/OR accepted by adversely affected party
2. Express declaration tht character/ownership being changed
   - No consideration req; no extrinsic evidence allowed

Question 10

Gift Exception - Transmutation requirements do not apply to a gift “between the spouses” of:

Answer 10

1. Clothing, wearing apparel, jewelry, or other TANGIBLE articles of a PERSONAL nature
2. Used solely or principally by spouse to whom gift is made
3. NOT substantial in value taking into account the circumstances of marriage

Question 11

Elements of a Valid Gift

Answer 11

1. Donative Intent
2. Delivery (Transfer of Possession)
   a. Manual - if object can be handed over, it must be. if not practicable…
   b. Constructive (key to a house)
   c. Symbolic (written instrument declaring gift)

Question 12

Classification Procedure

Answer 12

1. Is a presumption triggered?
2. Apply presumption
3. Can it be rebutted?

Question 13

A Presumption Does Not Apply to…

Answer 13

1. prop acquired b4 marriage
2. prop acquired after divorce/legal sep
3. SP

Question 14

What in property “acquired”?

Answer 14

Date when the legal right to interest, title, and possession arose.
It’s immaterial when they took physical possession.

Question 15

Types of Contractual Modification

Answer 15

1. premarital agt

2. transmutation

Question 16

What are the 3 ways the Gen CP presumption can be rebutted?

Answer 16

1. Tracing
2. Statutory Facts
3. K modification

Question 17

Where an asset increases in value, apportion increase in value according to…

Answer 17

SP/CP shares of original price

Question 18

Joint Title CP Presumption (Lucas) Pre-1984

Answer 18

1. SP proponent can use oral agt re: prop character to rebut
2. Right of reimbursement cannot be est by tracing. Must have evidence of agt btwn spouses that community would reimburse SP proponent for SP contributioon

Question 19

Joint Title CP Presumption (Anti-Lucas) - applies when?

Answer 19

Spouses hold title to prop in joint form = presumptively CP for distribution at divorce/sep only.
4 possibilities in CA:
1. tenancy in common
2. joint tenancy
3. CP
4. CP w right of survivorship

Question 20

JTCP presumption - Analysis

Answer 20

1. Characterize Prop:
   a) Is it triggered: Prop acquired during marriage? joint title?
   b) Rebut?
2. Right to reimbursement?

Question 21

JTCP presumption - How can it be rebutted?

Answer 21

1. clear stmt in deed / other doc evidence of title tht some portion of prop is SP; or
2. proof parties have written agt that prop is SP
   - NO TRACING -

Question 22

JTCP - right to reimbursement?

Answer 22

If SP-proponent can trace funds used to purchase prop to SP source, he can be reimbursed for SP contribution. Unless there’s a written waiver.
- No appreciation/interest. All appreciation is CP.

Question 23

JTCPP - At death

Answer 23

• Form of title controls: prop characterized according to how its described in title (1 of 4 forms). No presumption of CP arises.
• Any SP contribution assumed to be gift unless there’s an express agt.

Question 24

Commingled Funds - Family Expenses “CP” first presumption

Answer 24

Family expenses (food, rent, ent, etc.) are presumed to have been paid with any available CP funds. SP funds are presumed to have been spent on family expenses only once CP funds have been exhausted

Question 25

Commingled Funds - Family Expenses “SP Gift” Presumption

Answer 25

Any SP funds spent on family expenses are presumed to be a gift to the community. Reimbursement for SP spent on family expenses is available only if there is an agreement between spouses to that effect.

Question 26

Commingled Funds - Exhaustion Method (Favors CP proponent)

Answer 26

SP proponent shows CP was exhausted by fam expenses when asset was purchased so asset had to have been purchased w SP.
If CP not entirely exhausted at time of purchase, take from CP first, then take remainder from SP

Question 27

Commingled Funds - Direct Tracing (favors SP proponent)

Answer 27

3 req:

1. sufficient SP funds in acct at time asset purchased
2. SP proponent intended to use those SP funds to purchase asset. (testimony)
3. SP funds actually w/drawn (“disposition of funds”)

Question 28

Commingled Funds - Direct Tracing - Adequate Records

Answer 28

• SP proponent must present accurate + complete records of ALL acct trans (all deposits and withdrawals) during relevant time period. Ct will want a full picture of activity in acct during tht period.
• Just showing SP funds were avail is not sufficient. Need to show “disposition of the funds.”

Question 29

Impermissible Tracing Method:Total Recapitulation

Answer 29

• SP proponent cannot trace by showing tht, over lifetime of the marriage, total fam expenses exceeded total community earnings.
• Need to show at time of acquisition, SP was used to purchase asset (either by exhaustion or direct tracing).

Question 30

Commingled Funds - Jointly Titled Bank Account

Answer 30

Analysis doesnt change if bank acct is jointly titled. jointly titled account is governed by the general CP presumption, which can be rebutted by tracing.

Question 31

Community Debt

Answer 31

Debt incurred for the benefit of the community by either spouse after the date of marriage and before the date of separation.
Divided equally.

Question 32

\Separate Debt

Answer 32

Incurred by either spouse i) b4 marriage; ii) during marriage but not 4 benefit of community; iii) after separation + not for necessaries or minor kids; or iv) after divorce