Community Property Flashcards
What are the requirements for premarital agreement?
Signed
In writing
Neither involuntary not unconscionable
What must be satisfied for a prenup to be voluntary?
Representation by independent legal counsel or waived in writing
At least seven days between signature and receipt of prenup
If unrepresented by counsel, was fully informed of the terms and a facts
Not a product of fraud, duress, undue influence, or incapacity
When is a gift between spouses a transmutation without a writing requirement?
Tangible item of personal nature
For use principally by donee spouse
Not substantial in value
What assets are presumed to be separate property?
Property acquired before marriage
Property acquired after permanent separation or divorce
Property acquired by gift or inheritance
Educational degree and professional license
Liabilities or debts before or during marriage not for PC benefit
Rent, income, or profit from separate property asset
What assets are presumed to be community property?
Property acquired during marriage Labor, earnings, salary and wages Commingled bank accounts Loans given to couples Liabilities or debts incurred before and during marriage (while marriage lasts) Jointly held property Goodwill of professional practice Retirement benefit Rent, income, or profit from community property assets
What are fiduciary duties between couples?
Right of equal management and control.
Duty to disclose all material facts and information
Duty to account and provide access to records of assets and debt upon request duty to obtain consent when a gift is given to a third-party or to a sale or lease of community property real property
What are the two ways to calculate the value of a separate property business held by one spouse?
Pereira and Van Camp
How is whole life insurance calculated at divorce?
Present cash value of the policy is distributed according to the pro rata share
How is term policy distributed?
Term policy has no present cash value before death. Upon death, the source of funds whether (SP or CP) used to make the final premium payment determines its character
What is true of the Pereira formula?
Community property is bigger because the increase in value was due largely to the time, skill, and labor of the spouse. SP only gets an investment return on the initial value.
What is the calculation of the Pereira formula?
Community property equals the fair market value at the time of divorce - [the fair market value at time of marriage plus annual interest] SP
What is true of the Vancamp formula?
SP is larger because the increase in value is due to the inherent value of the assets or investment, and CP is reimbursed for the value of the labor
What is the calculation for the Van Camp formula?
Separate property equals fair market value at time of divorce minus community property [reasonable value of spouse’s services at market rate - - salaries received - family expenses paid]
What is true of community property business?
A business acquired during marriage that increases in value after separation because becomes a commingled asset subject to a separate property share, because the labor of a spouse post separation is separate property
What are the remedies for impairment of the nonconsenting spouses one half community property interest?
An accounting
Adding the spouse’s name to the title
Receiving a greater share of the community property
Forfeiture of an asset fraudulently concealed
