Community Property Flashcards
Living separate and apart refers to a situations in which:
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
Living Separate and Apart Factors
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
CP includes…
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
Separate Property includes
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
Property Division at Divorce - Generally
- CP assets and liabilities are divided equally (50/50)
2. SP assets and liabilities go to the spouse they belong to
General CP Presumption
- Prop acquired during marriage
2. Prop is untitled OR titled in one spouse’s name
Tracing Principle – fruit of the Tree Approach
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.
Pre-1985 (“easy transmutation era”)
oral or conduct-based transmutation permissible.
Requirements for Valid Transmutation - post 1/1/85
- Writing; need only be made/join in/consented to/OR accepted by adversely affected party
- Express declaration tht character/ownership being changed
- No consideration req; no extrinsic evidence allowed
Gift Exception - Transmutation requirements do not apply to a gift “between the spouses” of:
- Clothing, wearing apparel, jewelry, or other TANGIBLE articles of a PERSONAL nature
- Used solely or principally by spouse to whom gift is made
- NOT substantial in value taking into account the circumstances of marriage
Elements of a Valid Gift
- Donative Intent
- 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)
Classification Procedure
- Is a presumption triggered?
- Apply presumption
- Can it be rebutted?
A Presumption Does Not Apply to…
- prop acquired b4 marriage
- prop acquired after divorce/legal sep
- SP
What in property “acquired”?
Date when the legal right to interest, title, and possession arose.
It’s immaterial when they took physical possession.
Types of Contractual Modification
- premarital agt
2. transmutation
What are the 3 ways the Gen CP presumption can be rebutted?
- Tracing
- Statutory Facts
- K modification
Where an asset increases in value, apportion increase in value according to…
SP/CP shares of original price
Joint Title CP Presumption (Lucas) Pre-1984
- SP proponent can use oral agt re: prop character to rebut
- Right of reimbursement cannot be est by tracing. Must have evidence of agt btwn spouses that community would reimburse SP proponent for SP contributioon
Joint Title CP Presumption (Anti-Lucas) - applies when?
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
JTCP presumption - Analysis
- Characterize Prop:
a) Is it triggered: Prop acquired during marriage? joint title?
b) Rebut? - Right to reimbursement?
JTCP presumption - How can it be rebutted?
- clear stmt in deed / other doc evidence of title tht some portion of prop is SP; or
- proof parties have written agt that prop is SP
- NO TRACING -
JTCP - right to reimbursement?
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.
JTCPP - At death
- 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.
Commingled Funds - Family Expenses “CP” first presumption
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
Commingled Funds - Family Expenses “SP Gift” Presumption
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.
Commingled Funds - Exhaustion Method (Favors CP proponent)
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
Commingled Funds - Direct Tracing (favors SP proponent)
3 req:
- sufficient SP funds in acct at time asset purchased
- SP proponent intended to use those SP funds to purchase asset. (testimony)
- SP funds actually w/drawn (“disposition of funds”)
Commingled Funds - Direct Tracing - Adequate Records
- 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.”
Impermissible Tracing Method:Total Recapitulation
- 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).
Commingled Funds - Jointly Titled Bank Account
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.
Community Debt
Debt incurred for the benefit of the community by either spouse after the date of marriage and before the date of separation.
Divided equally.
\Separate Debt
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
