Community Property Flashcards

Question

Title Presumption

Answer 1

CP v Title The CP presumption (property acquired during marriage is community property) may be trumped by the Title Presumption, if the parties held property in Joint Title. • What is the difference between a CP right and the Title Presumption?

Answer 2

The CP presumption (property acquired during marriage is community property) may be trumped by the Title Presumption, if the parties held property in Joint Title. • What is the difference between a CP right and the Title Presumption?

Answer 3

• Bowman v. Bowman, 149 Cal. App. 2d 773 (1957). Facts: TC characterized the house as CP. Issue: Is the house CP or JT? Rule: JP is a rebuttable presumption that the property was in fact held in joint tenancy and the party claiming CP has the burden of overcoming the presumption. Analysis: While the presumption cannot be rebutted by an understanding of one party uncommunicated to the other, an understanding to hold as community property regardless of title may be shown by the conduct of the parties. Here, W testified that she did not know how about JT/CP, there was no discussion with H and she believed the house was CP. H contends that there was a discussion about the “right of survivorship” aspect of JT. Payment is not enough to rebut the presumption. The court concluded that there was enough evidence to overcome the presumption, as the parties intended the JT to avoid probate and the intent to avoid probate was not inconsistent with the intent to have the property characterized as CP. Conclusion: Judgment affirmed.

Answer 4

• Marriage of Lucas, 27 CAL. 3D 808, 614 (1980)** Facts: Parties purchased a house for $23,300 and W used her trust money, $6,351, for the down payment and the parties jointly took out a loan for $16,948.43 for the remaining purchase place. Title was taken as ”JT.” W also paid $2,962 from her SP trust funds for improvements Issue: Is the property in question CP or SP? Rule: Property purchased during the marriage, even in JT, will be considered CP absent an agreement of the parties. Analysis: Prior to 1965, property followed title. The JT presumption could be overcome by evidence of an agreement or understanding otherwise. Purchase funds not enough and “hidden” intentions also not enough. 1965 the Legislature added CC Section 164 which attempted to take away the ”title presumption” and stated Property acquired during marriage even as JT, the property will be CP. Why? Conclusion: Court Reversed.

Answer 5

• Marriage of Lucas, 27 CAL. 3D 808, 614 (1980) Where are we now in 1980? Pre 1965: Rebuttable Presumption that the ownership interest in property was found in title. 1965: Civil Code 164 (Civil Code section 5110) à Real Property acquired as JT during a marriage will be CP unless there is an agreement (written or oral) or evidence to show otherwise (Lucas). Lucas: Party who uses SP for CP is entitled to reimbursement from the CP or SP of the other party ONLY if there is an agreement between the parties to do so. What happens if there is an agreement? “Pro Rata Interest” Lucas: Title presumption could be overcome by evidence of an agreement or understanding that interest would be otherwise.

Answer 6

• California Civil Code 4800.1 (FC 2581) For the purpose of division of property upon (divorce or legal separation), property acquired by the parties during marriage in joint tenancy (JT) form is presumed Community Property (CP). This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is Separate Property (SP) and not Community Property. Proof that the the parties have made a written agreement that the property is SP.

Answer 7

• California Civil Code 4800.2 (FC 2640) Unless the party has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver, the party shall be reimbursed for his or her contributions to the acquisition of the property to the extent the party traces the contributions to a Separate Property source. No Interest or Inflation Downpayments, Payments for Improvements and Payments to reduce the principal of a loan used to finance the purchase or improvement of the property. Excludes: Payments on interest on the loan or payments made for maintenance, insurance, or taxation? Why? (a) "Contributions to the acquisition of property," as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property. (b) In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division. (c) A party shall be reimbursed for the party's separate property contributions to the acquisition of property of the other spouse's separate property estate during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

Answer 8

4800.1: The goal was to make JT title more “inescapable” form of CP. What about property held in other forms? (CP or Tenancy in Common) Under Lucas an oral agreement or understanding would suffice to establish a separate property ownership interest. 4800.2: Modified Lucas as follows: Reversed the Lucas gift presumption, now the separate estate preserves the separate claim. The separate property claim was now limited to reimbursement and not pro rata ownership. What are some of the problems you see?

Answer 9

• In Marriage of Buol, 39 Cal. 3d 751, 705 (1985): TC applied Lucas and found that an oral agreement between the parties that the residence was W’s SP although titled in JT. TC awarded the house to W. Court of Appeal (after the effective date of Lucas 1-1-84) reversed.

Answer 10

* In Marriage of Fabian, 41 Cal. 3d 440, 715 (1986): Parties held property in CP. H then used his SP for improvements. While in appeal, section 4800.2 became effective and H received his reimbursement. * BOTH addressed retroactivity: The court did not want o constitutionally apply the new law to cases still pending on its effective date when those cases had earlier been decided by the TC. To do so would “violate the due process clause b/c it would infringe vested property rights while not serving any important state interest.”

Answer 11

• Because of the holdings in Buol and Fabian, Section 4800.1 was amended in1987. To address the inconsistency in the law the court held as follows: (The most important amendment) 4800.1(3): The current modifications apply to ALL property held in joint title regardless of the date of acquisition of the property or the date of any agreement affecting the character of the property. 4800.1 (3)(b) For the purpose of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, tenancy by entirety, or as community property, is presumed to be CP. May be rebutted as follows: • A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is SP and not CP. • Proof that the parties have made a written agreement that the property is SP.

Answer 12

Vested Property Right • Marriage of Heikes, 10 Cal. 4th 1211, 899 (1995): ** Issue: Does the Constitution permit the statutorily authorized reimbursement of H for SP contributions he made in 1976 to the property divided as CP in 1992? Facts: H owned a home and lot in CA as his SP. H later conveyed both parcels to W and himself as JT. Dissolution proceedings commenced in 1990 and finalized in 1992. Marriage of Hilke applied the presumption retroactively. So H runs in for a new trial for retroactive application and the TC agreed. Rule: Fabian held that 4800.2 retroactivity would deprive the other spouse of a vested property right without due process of law. Analysis: Allowing the reimbursement requests by H would unconstitutionally deprive the W of a “vested property right” without due process of law. Conclusion: Retroactivity does not apply in this case. • Marriage of Heikes, 10 Cal. 4th 1211, 899 (1995): ** What is the basis for Community Property: Prior to 1965, title controlled (rebuttable presumption) Lucass Civil Code 164/5110: Community Property presumption, property (real property) acquired as JT during marriage is CP. (1965-1983) Civil Code 4800.1: The presumption that JT property acquired during marriage is CP was extended to all property, not just real property. A writing was required to rebut the presumption. Buol limited retroactivity b/c of the vested property right. (1984) Civil Code 4800.1Amendment: Included all property forms and allowed retroactivity. (1986). • Marriage of Heikes, 10 Cal. 4th 1211, 899 (1995): ** When H conveyed the property, what was the current law at that time? (1976) Buol does not preclude retroactive application of section 4800.1 presumption that the unimproved parcel conveyed by H to himself and wife in JT is CP, b/c H held no vested property right, as a JT of the parcel, that he would not also have held as owner of CP while both spouses were alive. (Retroactive OK when there is not a vested property interest) Right of Reimbursement: H seeks reimbursement under 4800.2. Should the court allow reimbursement of pre-1984 separate property contributions to CP under the post-Fabian modifications of section 4800.2?

Answer 13

• 1983 Uniform Premarital Agreement Act “UPAA” UPAA was designed to remedy “substantial uncertainty as to the enforceability and uniformity among the states.” CA created a modified version of the UPAA in 1985. • California Premarital Agreement Act (FC 1610 – 1617) • Important Provisions FC 1611: A prenuptial agreement shall be in writing and signed by both parties. It is enforceable without consideration. FC 1612: Parties may contract to just about anything with the exception of child support. Exception: Public Policy (promote divorce) or imposing criminal activity. FC 1613: Prenup is effective upon marriage (Executed at signing) FC 1614: Parties can amend the Prenup after marriage IN WRITING FC 1615: Enforcement • The Prenup must be entered into voluntarily, and may not unconscionable • The Prenup must have a “fair and reasonable” disclosure of property or financial obligations of the other party. • If there is no disclosure there must be a written waiver • Pre UPA/CPA Enactment: Does the PreNup promote divorce?

Answer 14

Marriage of Dawlyey, 17 Cal. 3d 242 (1946): The parties shall review the “objective” language of the PreNup to determine the validity of the agreement. Betty was concerned that her nonmarital pregnancy would result in termination from her employer and the parties agreed to a temporary marriage. James demanded that the parties sign a PreNup, Betty demanded that James take care of her and her daughter from a previous relationship until she could return to work. The agreement was signed two days prior to their marriage. Marriage of Dawlyey, 17 Cal. 3d 242 (1946): Parties married in June of 1964 and James filed for divorce in April of 1973. The Court held, “Enforcement of the state policy to foster and protect marriage, does not require the invalidation of the entire agreements based upon the subjective contemplation of the parties. State Policy requires only that the courts refuse to enforce contractual provisions which by their terms seek to promote the dissolution of marriage."

Answer 15

* Marriage of Noghrey, 169 Cal. App. 3d 326 (1985): Right before the wedding on the reverse side of the ceremonial wedding certificate, Wife insisted that Husband sign an agreement awarding her over $500,000 and ½ of H’s assets, in the event of a divorce. * The court held that, ”It constitutes a promise by the husband to give wife a very substantial amount of money and property, but only upon the occurrence of a divorce.”

Answer 16

• Estate of Wilson, 211 Cal. App. 4th, 1284 (2012): Domestic Partnership agreements that satisfy the FC Sections 1600-1617 and after the same rights of married persons were granted to domestic partnerships, are not automatically invalidated by the partner’s subsequent same-sex marriage.

Answer 17

* Marriage of Pendleton & Fireman, 24 Cal. 4th 39 (2000): Held that “premarital spousal support waivers are not per se unenforceable.” This court disagreed with the long standing public policy view that CA enactment of section 1612 expressed legislative intent to disallow spousal support waivers. * The Parties must ensure that the agreement is Voluntarily executed.

Answer 18

Marriage of Bonds, 24 Cal. 4th 1 (2000): The question here is whether wife’s consent to the Prenup was voluntary. When Bonds met his wife, a 23 year old Swedish immigrant, he was earning $106,000. Just before the parties were set to board a plane, Barry’s attorneys presented Sun and Barry with copies of the agreement and neither party reviewed the terms. Sun signed the agreement. Sun was not represented by counsel. In reviewing the totality of the circumstances, the court held that that the PreNup was voluntarily. executed • Marriage of Bonds, 24 Cal. 4th 1 (2000): “When a party challenging a premarital agreement establishes that he or she did not have legal counsel while the other party had such assistance, and the unrepresented party did not have the opportunity to obtain legal counsel or did not knowingly refuse legal counsel, the court must strictly scrutinize the totality of the circumstances involved in the execution of the contract.” • The court found that Sun understood what she was giving up and her consent was not coerced.

Answer 19

• 1612(C): Addition of Spousal Support Waiver: Marriage of Pendleton & Fireman A spousal support will only be enforceable IF • The party against whom the enforcement of the provision is sought has independent counsel. At the time of execution. • The provision can not be “unconscionable” at the time of enforcement • The only provisions will not make the spousal support waiver enforceable • 1615 (C): Was the Prenup executed voluntarily? (Bonds) Was the party represented by independent counsel at the time of the signing? Was the advice to forego counsel expressly waived in a separate writing? Did the party whom enforcement is sought have at least 7 calendar days to review the agreement? AND advised to seek independent counsel? Was there full disclosures and full explanation of rights? Did the party whom enforcement is sought execute a document declaring he or she received the information required? • Family Code Section 4(c) states to use the operative date of the law in question regardless of the circumstances before, on, or after the operative date. • Family Code Section (4)(b) Otherwise, look to the new law for the operative date. • Prior to 1985 there were no formal requirements for property agreements DURING marriage, as opposed to PreNups.

Answer 20

• Estate of Raphael, 91 Cal. App. 2d 931 (1949): This case fell on the filed tax returns, which the court heavily relied to find a transmutation.

Answer 21

• Marriage of Jafeman, 29 Cal. App. 3d 244 (1972): H and W lived in the home during the marriage, the court defined what did not rise to the level of transmutation: Mere use was not enough, use of CP funds for improvement was not enough, possession and management was not enough. Ultimately the “undisclosed belief” was also not enough. • Now, (1984), transmutations must be 1. Writing 2. Signed or accepted 3. by the spouse whose ownership interest in the property is adversely affected. • FC 850: Transmute CP à SP of either spouse Transmute SP of either spouse à CP Transmute SP of one spouse à SP of the other spouse • Family Code Section 852** • A transmutation of real or personal property is not valid UNLESS: Made in writing By an express declaration That is made, joined in, consented to or accepted by the spouse whose interest in the property is adversely affected. • Family Code 852 Transmutation of real property is not effective as to 3rd parties w/o notice thereof unless recorded. Does not apply to gifts that are not “substantial in value taking into account the circumstances of the marriage.” Effective Date: January 1, 1985 A statement in a will of the character of property is not admissible as evidence of transmutation of the property in a proceeding commenced before the death of the person who made the will.

Answer 22

* Marriage of Benson, 36 Cal. 4th 1096 (2005): Transmutation MUST be 1. In writing AND there must be 2. An express declaration. 3. Approved by the adversely affected spouse. FC 852. * “Express Declaration” : Only if it states on its face that a change in the character or ownership of the subject property is being made. Marriage of MacDonald. * Here, H claims he conveyed his CP interest in their home after she orally promised to waive, in writing, her community property interest in H’s retirement accounts. Despite MacDonld and FC 852, the TC ruled that H’s performance on part of the bargain… * Marriage of Benson, 36 Cal. 4th 1096 (2005): “served as an adequate substitute for W’s express written statement changing the retirement accounts into H’s SP. “ * This court said NO. ”Part Performance” does not apply here. The court did not intend for any additional exceptions to FC 852. The strict standards provided by the legistlature must be followed.

Answer 23

• Marriage of Valli** 58 Cal. 4th 1396 (2014): During the marriage H used CP funds to purchase an insurance policy on his life, naming his W as the policy’s only owner and beneficiary. H said the insurance policy was CP. W argued that the transmutation requirements apply only to transactions between spouses and not 3rd parties. Because there is not interspousal transaction, in her view the transmutation requirements do not apply. Community Property Presumption v. Title Presumption The court said that although other cases reference “interspousal transactions,” these cases did not provide a 3rd party exemption to the transmutation rule.

Answer 24

• In Re Marriage of Brooks and Robinson (2008): H and W purchased property during the marriage in W’s name only. The H argued on appeal that this was a botched transmutation b/c the transmutation requirements did not exist. The Court of Appeal stated the property was purchased in W’s name in a transaction with a 3rd person, not through an interspousal transaction.

Answer 25

The Court in Valli was still not persuaded by the findings in the earlier cases. • Spousal Purchases from 3rd parties v. Valli W did not argue in Valli that the purchase of the insurance policy was a valid transmutation but instead invoked the “title presumption.” • The Court is very clear: Family Code (852/2581/2640) trump title presumption, Evidence Code (662). Because the Court rejected the Title Presumption argument, the court held that ”Husband never expressly declared in writing that he gave up his community interest in the policy bought with community funds” The court felt as though the 3rd party exception was unnecessary considering the gift exception already in existence, 852(c). Most gifts are purchased by 3rd parties and do meet the transmutation standard.

Answer 26

• Lucas: H made a gift to W when title taken in her name. H made a ”gift” to W. With the introduction of transmutation laws, why does this no longer fly? • Concurring Opinion in Valli: FC 760 à Property purchased during marriage is CP FC 802 à PRESUMPTION of property purchased during the marriage is CP. • Standard of Proof: Preponderance of the evidence EC 662 à Title Presumption What happens when there’s a conflict between EC 662 and FC 760/802 and FC 852? • “Section 662 has no place in the characterization of property in actions between spouses. Applying section EC 662 to disputes between spouses would subvert basic tenets of California family law.” • Haines: EC 662 must yield to another presumption within CA’s community property law. Why is this?

Answer 27

• Marriage of Lafkas, 237 Cal. App. 4th 921 (2015): H contends the partnership interest is his SP b/c the new partnership agreement lack the requisite ”express declaration” to transmute the property interest. Wife contends that the interest is CP under FC 2581, joint title presumption. “We hold that when a spouse places Separate Property in Joint Tenancy, the transmutation requirements of FC 852 must be satisfied before the JT presumption of FC 2581 applies.”* • Marriage of Lafkas, 237 Cal. App. 4th 921 (2015): H formed a investment group in 1971 with friends and married his W in 1990. After marriage, H and W signed an updated partnership agreement. H testified that he thought it was required for his W for the loan application and W testified that H needed her credit. H stated the modified agreement lacked the “express intent” required in 852. TC: The modification resulted in a new partnership agreement and the Riverside properties were purchased during the marriage. H used Ws name and credit and the parties were both substituted for H’s previous 1/3 interest. The TC held that the change in the agreement satisfied the expressed declaration standard. • Marriage of Lafkas, 37 Cal. App. 4th 921 (2015) COA: Is there a valid transmutation under FC 852, if so 2. Does FC 2581 or any other Family Law presumption apply, if not does EC 662 apply? The statute does not require any magic term, but it must be clear on its face. The express declaration must unambiguously indicate a change in character or ownership of property, as a party does not “slip into a transmutation by accident” Marriage of Starkman The COA further held that this agreement did not satisfy FC 852 as it did not “contain any express declaration that the characterization or ownership of the property is being changed.” As we learned in Valli, ownership is not enough. • What would make this a valid transmutation?

Answer 28

* Div 7. Division of Property Part 3. Presumption Concerning Property Held In Joint Form * § 2581. For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: * (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. * (b) Proof that the parties have made a written agreement that the property is separate property. * (Added by Stats. 1993, Ch. 219, Sec. 111.7. Effective January 1, 1994.)

Answer 29

* See v. See, 64 Cal.2d 778: Parties married on 10/17/41 and separated 05/10/62. Husband was employed by THE “See’s Candies..” Husband also served as the president. During the marriage he earned over 1 million in salaries. * Account 13: $60k annual salary and family expenses paid by this account. Sometimes funds from his Security Account were transferred to Account 13. * Security Account: Separate Property and sometimes $15k. * Husband commingled in both accounts. * TC: if excess of community expenses over community income --> No acquisition of CP * See Continued: What is wrong with this theory? * Would essentially circumvent CP and only award CP if community income exceeded community expenses. * Supreme Court: FC 760 applies unless adequate tracing is done. The presumption may be overcome “with evidence that community expenses exceeded community income at the time of acquisition” à “Exhaustion” Method * When assets are commingled, the party asserting the defense must keep proper records and provide appropriate tracing.

Answer 30

* Marriage of Mix, 14 Cal.3d 604: Parties married on 09/04/58 and separated on 12/14/68. At the time of separation W earned $25,000 annually and 40% partner in her firm. The parties commingled all of their earnings, even W’s separate property investment property. * Exception to Married Women’s Presumption: After W requires joint management of all CP the presumption does not apply or when she has “management and control” of the bank account. * Marriage of Mix Contd. Two Forms of Tracing: * Direct Tracing: Whether separate funds so deposited continued to be on deposit when a withdrawal is made when property is purchased and whether there was an intention to withdraw such funds. “2 Step Process” * Family Expenses: Family Expenses are paid from community funds. If at the time of the acquisition of property, it can be shown that all community income has been exhausted by family expenses, then all funds remaining in the account at the time the property was purchased will be separate funds. * Here like See, W did not keep good records. But she actually tried to present evidence of proposed record keeping.

Answer 31

* Estate of Murphy, 15 Cal.3d 907: The fact that H received substantial separate income with community income does not overcome the CP presumption. H must trace. The court held here that there was not enough evidence to trace and H should have essentially opened a separate account. * Lets review pg. 248 problem. * See --> exhaustion * Mix à Direct Tracing v. Family Expenses * P. 248 problem * 20012 the SP was decreased by $3000 in CP all paid by the $20,000 inheritance. Now H has $17k. * 2013 $6000 of CP was deposited * 2014 CP deducts $3000 for Suit * Acquisition #1 There is $3000 from CP and $17,000 of Inheritance (*) * 2014 $2000 in salary ($1,000 for trip) * 2015 $2000 in salary * Acquisition #2 There is $6000 from CP and $17,000 of Inheritance (*)

Answer 32

* Marriage of Fick, 181 Cal.App.3d 997: During the marriage H used community funds to decrease the principal balance of debt. Here H used separate property funds and commingled with CP funds. Unlike the Mix case where W attempted to trace the funds, the H here did nothing. The court here said, “We are left in the dark as to the precise status and amount of SP in H’s personal account at the time of these payments.” * What happens when either spouse has a SP business and continues to work in the business during the marriage? * Pereira: Marital labor should be treated as CP to the business and growth in value of the business during marriage should be apportioned between the community and separate estates. * Van Camp: Community income is determined by designating a reasonable value to the services performed by the property owner in connection with the separate property business.

Answer 33

* Beam v. Bank of America, 6 Cal. 3d 12: Parties married on 01/31/39 and divorced in 1968. Prior to and during marriage, H inherited over a million dollars. During the marriage H was not employed but devoted his time to managing his separate estate. During the marriage W did not work. * Using Pereira the the TC assigned a legal rate of 7% as a reasonable rate of return on H’s separate property. Under this approach the entire increase would be assigned to H. Meaning the increase would not be attributed to H’s efforts, time or skill, but the normal growth factor and there would be no CP. * Van Camp: Assign an annual fee of 1% and that fee would be $17k a year. What is wrong with this theory? * “Family Expenses”

Answer 34

* Gilmore v. Gilmore, 45 Cal.2d 142: What happens if spouse is paid a “reasonable salary?” The apportionment rules are to be applied only “In the absence of circumstances showing a different result.” * Here the business owner introduced substantial evidence that the salary received was a proper measure of the community interest in the earnings of the business, and the TC is affirmed.

Answer 35

* Tassi v. Tassi. 160 Cal.App.2d 680, Very similar to Gilmore, is the salary assigned, “reasonable?” Which formula will achieve substantial justice? * Van Camp: Value employment in the business during the marriage. Any additional value is the separate property of the business owner. Also consider *Beam, family expenses presumption. Is the personal activity, ability and capacity the chief contributing factor? * Pereira: The business is assigned a fair rate of return for the life of the marriage. If the current value of the business exceeds the original value + interest, the excess is attributed to community labor and belongs to the community. Beam is also considered here.

Answer 36

* Gudelj v. Gudelj, 41 Cal. 2d 202: Parties married in 1938, prior to marriage H owned a Pacific Cleaners. He later owned Owl Cleaners and he later purchased a ½ interest in Helen French Cleaners. W said under FC 760 Owl Cleaners was acquired during marriage. H said the Owl was purchased with SP from sale of Pacific Cleaners property. * The court says, one second, payment was also secured by a note and we must consider the “intent of the seller” to rely upon the separate property of the purchaser or the community asset. There was no evidence concerning the intent of the seller in extending the credit and H did not overcome FC 760 presumption.

Answer 37

* Marriage of Grinius, 166 Cal.App.3d 1179: H and W worked in a restaurant together. To purchase the building, the parties used $20k down payment and $80,000 SBA loan and $40k from Home Federal Savings and Loan. The SBA loan was secured by CP AND SP. The TC awarded the property to H. * Like CP, CP loans purchased during the marriage are presumptively CP, this presumption may be overcome by showing the lender intended to rely solely upon a spouse’s SP. If there is no evidence to show the “lenders intent” the CP loan presumption will prevail.

Answer 38

* Marriage of Moore, 28 Cal.3d 366: What is the community interest when payments made during marriage reduce the debt on a residence purchased by one of the parties during marriage? W owned the property prior to marriage, during the marriage the community made the payments and W made payments prior to marriage and after separation. * What this Moore tell us? * There is a ”pro tano” community property interest which also includes the principal pay down during the marriage.

Answer 39

* In Re Marriage of Aufmuth: Separate Property shall include the down payment and the full amount of the loan less the amount by which the CP payment reduced the principal balance of the loan. * Down payment $16,640.57 plus ($40,000 - $5,986.20) equals $50,654.37. * $50,654.37 divided by purchase price $56,640.57 equals 89.3 percent or the SP of the appreciation. * CP à Principal pay down $5,986.20 divided by the purchase price of $56,640.57

Answer 40

* Review of the Aufmuth formula in Marriage of Moore: * Determining Separate Property: * Take the down payment + full amount of the loan – Community Property payments that reduced the principal balance of the loan. * This sum is divided by the Separate Property purchase price * Take the percentage and multiply by the current value * Add to any amount of equity paid by separate funds * Review of the Aufmuth formula in Marriage of Moore: * Determining Community Property: * Divide the amount by which the community payments reduced the principal by the original purchase price. (Step 1) * Take the percentage from Step 1 and multiply by the current appreciation. Step 2. * Add Step 2 to the amount of equity paid by community funds. * Review of the Aufmuth formula in Marriage of Moore: * Review of problems on page. 286 * Portion of a recovery intended to compensate a spouse’s lost of marital wages is Community Property. * The portion intended to compensate for medical expenses is awarded to the estate that paid the expenses. * Damages for bodily injury and pain and suffering are ”understood” to be the injured spouse’s separate property.

Answer 41

* Marriage of Devlin, 138 Cal.App.3d: Personal Injury damages received or to be received from a cause of action arising during marriage are CP. FC 780. Upon dissolution, FC 2603 any remaining proceeds shall be awarded to the injured spouse. * Here the injured party purchased property to assist him. W says the personal injury award was transmuted to ordinary CP and the court said, NO. * What is the property damage according to the character of the underlying property? The character of the damaged property takes precedence over the character of the premiums.

Answer 42

* Estate of Logan, 191 Cal.App.3d 319: Term life insurance policy upon the life of one spouse is not community property even though the premiums before separation were paid with CP funds. * Exception: If the insured spouse becomes uninsurable during the term paid with community funds. * Exception: If the insured dies during the term paid with community funds, the proceeds of the policy are community property. * When premiums for a new term have been paid from post separation separate property earnings and the insured remains insurable, the policy must be confirmed to the insured as separate property. * Estate of Logan, contd.: H and W married in 1947 and separated in 1966. Their 1968 judgment ordered H to maintain life insurance with the minor children as beneficiaries until they reached the age of majority. * Rule Applied in Logan: When a spouse is covered who is insurable, the term life is CP only for the period beyond the date of separation for which community funds were used to pay the premium.

Answer 43

Pre-1965 - Title Presumption 1965 - JT during marriage will be CP w/o agrmt 1975 - Prop pchs prior to 1975 subject to Married Women's Presumption 1980 - Lucas - JT will be CP w/o agrmt; right to reimb w/agrmt 1984 - Anti-Lucas 4800.1/4800.2 1985-1986 - Buol/Fabian - No retroactivity 1987 - Retroactivity OK 1995 - Heikes - Vested property right Now - FC 2640/2581

Answer 44

Answer 45

Pre-1985 - Transmutations 1985 - Transmutations 2005 - Benson (no part performance) 2014 - Valli (transmutation applies to third parties) 2015 - Lafkas FC 852 before FC 2581, strict application of express declaration

Answer 46

Retirement Benefits • Marriage of Brown, 15 Cal.3d 838, 544: *leading retirement case* This case involves a ”nonvested” pension right. • Facts: Couple married in July of 1950. When separated, H accumulated 72/78 points for retirement, most points earned during the marriage. If H continues to work he will reach his 78 points. He can then retire or wait to retirement age and get more money. • TC Holding: B/c H did not acquire a “vested” right t his retirement pension, the value of his pension rights did not become community subject to division. • Marriage of Brown: The French court and subsequent court erred in defining “nonvested” pension rights as expectancies and denying the TC the authority to divide such rights as CP. A division of CP which awards one spouse the entire value of the asset, without any offsetting award to the other spouse, does not represent that equal division of community property contemplated by Family Code 2550. • Marriage of Brown: In this case, Husband’s pension was built up by 24 years of community effort, under French the pension would escape the division of community property because the dissolution occurred two years before the vesting date. • This result would cannot be reconciled with the fundamental principle that property attributable to the community earnings must be divided equally when the community is dissolved. • Will Marriage of Brown be retroactive? “Marriage of Brown should not apply retroactively to permit a nonemployee spouse to assert an interest in nonvested pension rights when the property rights of the marriage have already been adjudicated by dissolution or separation which has become final as to such dissolution, unless the decree expressly reserved jurisdiction to divide such pension rights at a later date. “ FC 2550. • What did we learn from Marriage of Brown: • Retirement benefits earned by a spouse during marriage are CP, subject to equal division. • ALL benefits (vested, nonvested, matured, or immature).

Answer 47

* French: Right to retirement pay is an expectancy which is not subject to division as community property. “Nonvested pension rights may be community, but that they are not property; classified as mere expectancies, such rights are not assets subject to division on dissolution of marriage.” * Some cases later stated, “a vested pension is community property even though it has not matured.”

Answer 48

* Marriage of Gilmore, 29 Cal. 2d, 418: H and W separated in 1978 after 14 years of marriage. Instead of dividing the plan, the court reserved jurisdiction. * Gilmore helps us determine the “timing” of such benefits. In essence does not nonearning spouse have to wait to earn receive the benefits? * Marriage of Gillmore: Well we know FC 2550 states that ALL CP must be divided equally between the parties. The court stated, Husband retains the right to determine what retirement benefits he will receive. He can retire when he wants. BUT he can’t deprive Wife of her full share of retirement benefits, he must compensate her for the interest she loses as a result of any decisions which modify the plan. Here the court further held: * The TC knows what is owed to Wife * Spousal Support does not eliminate Wife’s right to Husband’s pension * Wife does not have to show a “financial need” * Wife’s decision to take her money now does not change Husband’s plans and he must either “buy out” here interest or pay her what he owes her.

Answer 49

* Employee Retirement Income Security Act (ERISA) or private sector pension plans: ERISA allows total vesting after 5 years of employment and partial vesting w/in 3-7 years. ERISA tried to circumvent the system by creating “anti-attachment” provisions. However, Congress held that the “anti-attachment” provisions do not apply to Qualified Domestic Relations Orders (QDRO). * QDRO may require a plan to pay benefits to an alternate payee, including an employee’s spouse or former spouse.

Answer 50

* Marriage of Poppe, 97 Cal.App. 3d, 1: This case involved a Navy Pension plan. The Navy awarded pension pay based on the number of years served and amount of the retiree’s salary during active service. In this case, Husband retired with a total of 5002 points of which more than 3000 were earned during active duty prior to marriage. Husband earned 1632 during the marriage. * This case gives us the “Time Rule” * The TC used the time rule by dividing 27.25 years of marriage by 31.5 “qualifying” years which totaled $253.60 per month for the former wife. * Marriage of Poppe: * This court said, “Apportionment on the basis of the time rule is appropriate only where the amount of the retirement benefits is substantially related to the number of years of service.”

Answer 51

* Marriage of Judd: To determine the community interest based on the “time rule,” use the fraction of retirement assets, the numerator of which represents the length of service during marriage, before separation, and denomination of which represents the total length of service by the employee spouse. * Consider problem 2 on page. 325: Parties married between 1976 and 2002, 2011 Harry retired. What is the community interest based on the “time rule?” * Time Rule Continued: * Is the pension in question substantially related to the number of years of service? * If yes, how long were the parties married? (26 years  numerator) * How long was the employee spouse in the service in question (40 years  denominator) * 26/40 = .65, .65 x 5000 = 3250/1625.

Answer 52

* Marriage of Lucero, 118 Cal. App. 3d 836: H was a fed. government employee. Upon retirement, H was required to redeposit monies to obtain the maximum retirement benefits. H used his SP funds to deposit $9,373. The TC held that the CP interest extended only to the benefit H earned absent the redeposit of funds. * W contends as follows: * CP interest in H’s retirement extends to the full amount of benefits after redeposit. She is not opposed to a pro rata share of the redeposit. H contends that the redeposit is his SP. * Marriage of Lucero: The court held, “To allow husband the sole right to decide whether to redeposit and the sole right to elect whether to redeposit with SP or CP is to treat the redeposit as H’s SP.” * Granting such right to H is incorrect as the redeposit is a pension right and the community owns all pension rights attributable to employment during the marriage. * The court used the “time rule” to determine W’s interest. * The Terminable Interest Rule: “Private Employers” pensions come in two forms: * Periodic benefit from the pensioner until his death OR * Lower periodic benefit until the pensioner’s death and a further reduced benefit for the surviving spouse until his/her death. * “Public Pensions” tend to have a joint and survivor model for the worker and spouse but may not allow the married worker and spouse to opt for a higher benefits for the worker’s life alone.

Answer 53

* Benson v. City of Los Angeles: (1963) Fireman elected for the joint and survivor pension during his marriage to 1st wife. Divorced and married 2nd wife. 1st wife was not a “surviving” spouse so the benefits went to 2nd wife. * Repeal of the Terminable Interest Rule (1986): * Family Code Section 2610: A divorced nonemployee spouse may assert his/her CP interest in ANY benefit generated by community labor. Additionally, a deceased divorced nonemployee’s estate may make such claims. The same is true when the employee passes away during marriage, the estate can seek employee’s interest in the community retirement plan.

Answer 54

• Branco: held that ERISA preempts a CA divorce court distribution of an ERISA regulated CP pension insofar as it purports to enable a divorced wife to leave her share of the CP pension earned by her former spouse to her devisees at her death. Her interest expires at her death and reverts to the surviving employee spouse. (Nonemployee spouse’s CP interest terminated at her/his death or the death of the employee (Waite))

Answer 55

* Disability Benefits * Marriage of Jones, 13 Cal. 3d 457, 531: H entered military service in 1957 and married in 1964. In 1969, Husband lost his leg and retired for disability. During the divorce proceedings, W claimed H’s right to lifetime disability payments as a CP asset. TC held that all disability payments AFTER separation would be H’s SP. * Here H received the pension ONLY b/c of his disability. “Serviceman’s right to disability pay, acquired BEFORE earning longevity of service vested right to retirement pay , is not a community asset.” * Such payments serve to compensate the disabled veteran for loss of military pay caused by the premature retirement for his diminished ability to compete for civilian employment. * Marriage of Jones: The reduced earnings work a loss to the community, but the loss does not continue after dissolution, which becomes SP of the veteran.

Answer 56

• Marriage of Rossin: W purchased disability policy prior to marriage and received the benefits from the policy BEFORE marriage. COA held that the benefits were her SP b/c she acquired the right to the those benefits before marriage w/o contribution form the community.

Answer 57

* Marriage of Stenquist, 21 Cal. 3d 779, 582: H joined the army in 1944 and married in 1950. In 1953 he suffered a service related injury related to amputation of his left forearm, and received a 80 percent disability rating. He continued his service until 1970. At the time he faced the decision to have “regular” retirement or “disability” retirement. H received the disability retirement. * H commenced dissolution proceedings in 1974. H appeals from the TC award of any of his retirement to W. * Marriage of Stenquist contd. * Jones: When a spouse is entitled to receive a pension ONLY b/c he is disabled, and has no right to a pension because of longevity of service, the disability benefit payments are his SP upon dissolution of marriage. At this time (1975), community interest in a nonvested retirement pension was a mere expectancy, and not a property interest. * Brown: (1976): Pension rights were deemed a property interest which undermined the holding in Jones. * Stenquist (1978): “We cannot permit the serviceman’s election of a disability pension to defeat the community interest in his right to a pension based on longevity.” * Stenquist: * Allowing one party to elect “disability” pension to defeat community interest would violate the principle that one spouse cannot defeat the community interest of the other spouse. * Only a portion of husband’s pension benefit payments, termed ‘disability payments’ is property allocable to disability. * In this case, the pension’s function of compensating the husband for loss of earning capacity… is secondary to the primary objective of providing retirement support. * Stenquist continued: Where the employment spouse elects to receive disability benefits in lieu of a matured right to retirement benefits, only the net amount thus received over and above what would have been received as retirement benefits constitutes compensation for… loss of earning capacity and is, SP. * What about Mansell v. Mansell? Pg. 340 (military disability pay in lieu of retirement benefits)

Answer 58

* Marriage of Wright, 140 Cal. App. 3d 342, 189: Parties separated in 1976 after 12 years of marriage. H received $24,208 from his employer for one year’s pay for termination for harassment. * “Termination payment was made in recognition that husband would encounter difficulty in securing future employment which would entail prospective loss of earnings. Since it was paid after separation is SP.” Is the result different if paid during the marriage?

Answer 59

* Marriage of Lehman, 18 Cal. 4th 169, 955: H and W married in 1960 and 1962 H began to participate in his employer defined retirement plan. In 1977 the parties separated. Is there a community property interest in a defined benefit retirement plan? * Nonemployee spouse who owns a community property interest in an employee spouse’s retirement owns a community property interest in the latter’s retirement benefit as enhanced. (Gram)

Answer 60

* Marriage of Hug, 154 Cal. App. 3d 780, 201: Parties were married in 1956 and separated in 1976. In 1972, H left his employer and began working with a new employer where he earned 3100 shares of stock. TC’s should be able to exercise its discretion to fashion an equitable allocation of separate/community interests in employee stock options. * The primary goal appears to be deferring compensation for present services.

Answer 61

* Goodwill of a business is the expectation of continued public patronage. * How do we value goodwill? * Capitalization/Excess Earnings approach * Buy – Sell Agreements * Fair Market Valuation * Marriage of Watts: H was a surgeon and entered into a partnership. H’s expert used the “market value/comparable method of valuation” and W’s expert used “capitalized excess earnings method” * When there is a ”professional practice” the court must determine whether ”goodwill” exists. * IF there is service business, the court must determine whether goodwill exists? If so, the court must value it.

Answer 62

* Marriage of Watts: TC found that H’s Excess Earnings as DOS was $11,500 which this court found fault. This court said if the TC used the “capitalized excess” method to value goodwill, there would be value. * Side note: The mere fact that a professional practice cannot be sold does not mean goodwill does not exist.

Answer 63

* Marriage of Czapar, 232 Cal. App. 3d 1308, 285: The parties agree that the business is community property. TC found that the business had a cash value which was reduced b/c of the “covenant not to compete.” * Establishing a value for a future covenant not to compete separate from the value of the business goodwill itself is too speculative.

Answer 64

* Marriage of Slater, 100 Cal. App. 3d 241 (1979): H was working in a partnership at the time of divorce. The court held that the TC missed the mark. ”The asset being divided was the H’s interest in the partnership, not his contractual withdrawal rights.” * Determining Goodwill: The expectancy of future earnings is not the same as the current value of goodwill. It is important to use an accounting method to determine goodwill and not merely what H may earn in the future. The same is true about the contractual withdrawal right.

Answer 65

* Marriage of Sullivan: Parties married in1967l H attended medical school from 1968-1971. W definitely took care of the community during this time. In 1978, H filed for divorce. * FC 2641 states: Absent a written agreement, the community should be reimbursed for education or training of a party that substantially enhanced the earning capacity of the party. * How do we compensate for this enhancement? * Payments made with community property for education or training or * For the repayment of a loan incurred for education or training * What about Spousal Support? * Compensation v. Reimbursement?

Answer 66

* Marriage of Watt, 214 Cal. App. 3d 340, 262: Parties married in 1972 and separated in 1981. H was a student for the entire marriage and W worked during the marriage using her income for family expenses. The parties combined income during the marriage was $81,779, $66, 923.92 in W’s earnings and $14,856 from H. During this time period, H’s student loans totaled $26,642. H used at least $3,000 in loan funds for direct educational expenses leaving $23,642 for living expenses. (1989). * Marriage of Watt Contd. * W cited the amended (1984) FC 2641 (b)(1), community shall be reimbursed for community contributions to education or training of a party that “substantially enhances” the earning capacity of the party. * “Compensable Community Contributions:” payments made with community property for education or training or the repayment of a loan incurred for education or training. * W also cited FC 4320(b) to require the court to consider when making a spousal support determination. “The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. * Marriage of Watt Contd. All of David’s direct educational expenses, tuition, books, lab fees, were paid for with his student loans and grants but the community paid for 64 percent of the living expenses. * FC 4320: All of the working spouse’s efforts to assist the student spouse in acquiring education and enhanced earning capacity shall be considered. The court shall consider the totality of the nonstudent’s contributions and efforts toward attainment of that degree including contributions for ordinary living expenses. * FC 2641: The married couple would incur ordinary living expenses regardless of whether one spouse is attending school. FC 264(a)1 only applies to the cost of tuition, fees, books and supplies and transportation. * What about student loan proceeds used to pay educational expenses?

Answer 67

* 1950’s Married Women had the right to “manage and control” their community property earnings. However, once the wife’s earning were mingled with the property managed by her H, she lost managerial capacity. H alone could manage manage and control the community property. * 1970’s: Emerged the SP system. 1973: Either spouse could manage the community, which included liabilities. The married women’s presumption survives the 1973 amendments but all property titled in W’s name post 1974 is now presumed community property.

Answer 68

* Lezine v. Security Pacific Financial Services, 14 Cal. 4th 56, 925: H unilaterally transferred a security interest in community real property to Security Pacific Financial Services w/o knowledge to W. Pursuant to FC 1102, W wanted to set aside the transaction. * Droeger: When a nonconsenting spouse, during the marriage, timely challenges a transfer made in violation of FC 1102, the transfer is voidable in its entirety. But what about the liens associated with a transfer? * Lezine contd. FC 910 tells us that the community estate is liable for a debt incurred by either spouse before or during marriage regardless of whether one or both spouses are parties to the debt or judgment for the debt. (FC 1101). The community estate remains liable to 3rd party creditors for any debt incurred as a result of such misuse of assets. What follows in this case? W received the property SUBJECT TO THE LIEN. * Lezine contd: FC 1102 provides that either party can manage and control CP. BUT BOTH spouses MUST join in executing any instrument by which the community real property or any interest therein is leased for a longer period than one year or is sold, conveyed or encumbered. If a nonconsenting spouse, during the marriage, timely challenges a transfer made in violation of FC 1102, the transfer is voidable in its entirety. Droeger. * What about the cancellation of the deeds of trusts on the underlying obligation for the challenged transfer? * Lezine contd. FC 910 tells us that the community estate is liable for a debt incurred by either spouse before or during marriage regardless of whether one or both spouses are parties to the debt or judgment for the debt. (FC 1101). The community estate remains liable to 3rd party creditors for any debt incurred as a result of such misuse of assets. What follows in this case? W received the property SUBJECT TO THE LIEN. * Lezine contd: FC 1102 provides that either party can manage and control CP. BUT BOTH spouses MUST join in executing any instrument by which the community real property or any interest therein is leased for a longer period than one year or is sold, conveyed or encumbered. If a nonconsenting spouse, during the marriage, timely challenges a transfer made in violation of FC 1102, the transfer is voidable in its entirety. Droeger. * What about the cancellation of the deeds of trusts on the underlying obligation for the challenged transfer? * Lezine contd. This court held that, “it does not appear that the purpose or effect of FC 1102 is to exempt the community real property from liability for satisfaction of marital debts incurred unilaterally by one spouse, for which the community property otherwise is liable.” The creditor who loses its security interest under 1102 retains the rights of any unsecured creditor to resort to the community real property for satisfaction of the underlying debt. * What about FC 1100?

Answer 69

* Family Code Section 1100 (a) … either spouse has the management and control of the community personal property, whether acquired prior to or on or after January 1, 1975 (why 1975)… * (b) A spouse may not make a gift of community personal property or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse. *Gifts made by both parties to a 3rd party are excluded. * (c) A spouse may not sell, convey, or encumber community personal property used as the family dwelling, furniture, or clothing without the written consent of the other spouse. * Family Code Section 1100 * (d) … a spouse who is operating or managing a business or interest in a business that is all or substantially all community personal property has the primary management and control of the business or interest. What does this mean? * (e) each spouse must act in good faith….

Answer 70

• Wilcox v. Wilcox, 21 Cal. App. 3d 457 (1971): H took and would not return $30,000. In 1971, Husbands still have the management and control of community property and his “right” is ”invaded” by his wife she deprives him of his right by exercising exclusive control over community funds. There are other remedies for this but not for Husband to sue his wife.

Answer 71

* Spreckels v. Spreckels, 172 Cal. 755, 158 (1916): Husband made gifts to his sons totaling twenty-five million dollars. Wife did not consent to the gifts made by Husband. W claims that although Husband did have management and control, pursuant to the “FC 1101 equivalent” at that time, “Husband needed W’s written consent to make such a gift.” The court held that Wife ratified her husband’s gifts to her children by her own will acknowledging that the sons received a large part of the estate. * Fields v. Michael, 91 Cal. App. 2d 443, (1949): During his life Husband made several gifts and W learned of such gifts after Husband’s death. During H’s death the gifts are “voidable” and to the extent ½ after his death. Civil Code 172 requires a writing to make gifts from community property. * Harris v. Harris, 57 Cal. 2d 367, 1962: Plaintiff is the son of Husband and Wife and the father of the defendant. In 1945 H was appointed W’s guardian and the son of H and W took over as guardian in 1957. During the time she was held to be incompetent, H made gifts of community property to defendants. The TC and this court affirmed that W was unable to give her consent to the gifts to Defendant which violate Civil Code Section 172. * Estate of Bray, 230 Cal. App. 2nd 136 (1964): In this case Husband made gifts to his son by way of a bank account and bonds in joint tenancy (Does this matter?). This transfer does not survive muster under Civil Code section 172.

Answer 72

• Gionis v. Superior Court, 201 Cal. App 3d. 786 (1988): Husband wanted his martial status resolved so he could make investments and obtain credit w/o having to seek quitclaim deeds from his Wife. He wanted to “bifurcate” the status of marriage. The court overturned the TC and held that “only slight evidence is necessary to obtain bifurcation and resolution of marital status. On the other hand a spouse opposing bifurcation must present compelling reasons for denial.” FC 2337.

Answer 73

* Robinson v. Robinson, 65 Cal. App. 2d 118 (1944): The power of the court in disposing of the property of the properties in divorce action is limited to CP. The court has no power to dispose of the SP of one of the parties. * Marriage of Hebbring, 207 Cal. App. 3d 1260 (1989): “The TC possesses the jurisdiction in a marital dissolution action to order reimbursement for SP on one spouse which as been willfully destroyed by the other from the CP share of the latter.” H was not happy with W and threw W’s jewelry into the sea. The court held that H must reimburse W for the disposal of her SP from his share of the CP. What about the holding in Robinson? What is the difference here?

Answer 74

* Marriage of Dellaria, 172 Cal. App 4th 196 (2009): FC 2550 requires that the court to order an equal division of property outside of 1. a written agreement between the parties 2. oral stipulation of the parties in open court (why is this allowed?). Post separation oral agreements are void and unenforceable. * The parties even “acted” on their oral agreement, houses were transferred, bank accounts were changed, etc. (transmutation?)

Answer 75

* FC 2601: The court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the communicate estate. * Marriage of Brigden, 80 Cal. App. 3d 380 (1978): Stock was awarded to H as his SP and W objects and states the stock should have been divided “in-kind.” W wanted ½ of the said stock. H requested all of the stock b/c of his 1)emotional ties to the company and 2)power it gives him in the company. The court said H’s reasons were not enough to invoke FC 2601 and the TC’s decision was reversed.

Answer 76

* Marriage of Connolly, 23 Cal. 3d 590 (1979) H received stock and executed a promissory note to W for the value of her share of the stock. After the value of the stock rose dramatically, W moved to reopen the judgment. * How is this case different from Brigden? * W did not request the stock * W received a promissory note for the reasonable value of the stock determined by the TC. * What was the main concern here?

Answer 77

* Williams v. Williams, 14 Cal. App. 3d 560 (1971): Shortly before the divorce, H withdrew $39,251 from a savings and loan account and received another $73,237 from the dissolution of a stock account. The failure of the TC to make findings regarding the above gave rise to the appeal. * The court held without a finding regarding the money in question, the H would obtain “an unfair advantage” over W if he is not required to account for the money which was CP.

Answer 78

* Marriage of Rossi, 90 Cal. App. 4th 34 (2001): During the marriage W wins the lottery and fails to disclose her winnings during the dissolution proceedings. H learns of the earnings after the dissolution is final. * During the dissolution proceedings, there is a duty to disclose all assets and debts, even separate property assets and debts. * H sought 100 percent of the lottery winnings pursuant to FC 1101 (h) and the TC agreed with H. COA affirms based on 721 (b) and awarded the proper “sanctions” pursuant to FC 1101 (h). * What about the mitigating facts? What about the failure to disclose SP?

Answer 79

* Marriage of Feldman, 153 Cal. App. 4th 1470 (2007)*: H failed to fully disclose his assets pursuant to FC 721 and FC 1100 (e). * FC 1100 (e): Each spouse shall act w/respect to the other spouse in the management and control of CP assets and liabilities until division of such assets and liabilities. Married couples share a “relationship of personal confidence” according to FC 721. * H argued that W was not injured, which is not a requirement for 2107 sanctions. * H further argued that W did not request the information and the court held that W’s request is unnecessary for 2107 sanctions.

Answer 80

* FC 2040: Temporary restraining orders in summons basically imposes a ”freeze” on the parties during the dissolution. When does FC 2040 apply to the Petitioner? Pg. 566 * Estate of Mitchell, 76 Cal. App. 4th 1378 (1999): During the dissolution proceedings H filed a declaration of severance of JT and W claimed H’s actions violated FC 2040. The court held that severance of a JT is not a “transfer” or ”disposition” of property and does not violate FC 2040. * What are the remedies for any violation to FC 2040? Pg. 567

Answer 81

* FC 2551, FC 2620-2626 (pg. 569 -570) * FC 2621: Debts incurred by either spouse before the date of marriage shall be confirmed w/o offset to the spouse who incurred the debt. * FC 2625: … All separate debts… shall be confirmed w/o offset to the spouse who incurred the debt. * What is considered separate debt? * FC 2626: The court has jurisdiction to order reimbursement in cases it deems appropriate for debts paid after separation but before trial. * FC 2552 (a): The court shall value the assets and liabilities as near as practicable to the time of trial (what about FC 2626). What about Businesses and real estate?

Answer 82

* Marriage of Fonstein, 17 Cal. 3d 738, 552 (1976): In valuing H’s interest in the law partnership, the TC withdrew tax consequences H may incur by reducing the value of H’s interest accordingly. * H’s interest in his law partnership will be his separate property and his sole decision to receive taxable withdrawal payments and the benefits of such payments will go to him. * Although H may do whatever he wants with his law partnership which may have tax consequences, there is no indication that he must or intends to do any of of them.

Answer 83

* Marriage of Epstein, 24 Cal. 3d 76, 592 (1979): In this case, in dividing property, the court SHALL consider any taxes actually paid in the division of CP. * What problems may this principle represent? * Married couple’s “exemption”

Answer 84

* Henn v. Henn, 26 Cal. 3d 323 (1980): H failed to include his federal military pension in the dissolution proceedings. W also knew about such proceedings and did not include the pension on her disclosures. (FC 2556) * H asserts the principle of “res judicata” and “collateral estoppel” * Res Judicata only applies to issues actually litigated, the pension was never litigated. W can not be “estopped” from litigating her CP right in the pension. * How do we avoid or attempt to avoid this issue? =

Answer 85

* Marriage of Varner: H failed to truthfully disclose the value of assets at the time of trial and W moves to set aside the judgment. W later learned that the assets were valued much higher than what was provided by H. * AFTER January 1, 1993 the court adopted FC 2120-2127 before the FC was enacted to address this issue, CCP 473 provided the basis for a set aside. * FC 2122 provides that a motion to set aside a stipulated judgment may be brought w/in one year after the date of entry of judgment.. * H’s failure to comply with FC 2102 constitutes a basis for setting aside a judgment on the grands of mistake under FC 2122. * What are the other grounds of set aside outside of mistake?

Answer 86

* Dargie v. Patterson, 176 Cal. 714, 169 (1917): H made a gift of CP real estate to a 3rd party. During this time, W did not have to join in the conveyance but Civil Code 172 (now FC 1100 b) did require her written consent to gift any CP. After H’s death, W’s remedy is limited to an undivided ½ of the property. * Unauthorized gifts shall be treated as a testamentary transfer of the donor’s 1/2 interest if the gift is not challenged before the donor’s gift. * A surviving spouse owns q1/2 in every item of CP.

Answer 87

* Estate of Prager, 166 Cal. 450 (1913): After H’s death, W informed the devisees that she claimed the right to ½ of the CP and the additional property given to her in the will. The appellant stated that “by taking under the decree of partial distribution ½ of the CP not devised to her, W manifested her election to forego the benefits given her by the will.” * The court held that there is nothing in the will that requires W to surrender either her interest in the CP or the devises and bequests given to her. The testator is presumed to have made his will with knowledge that his power of testamentary disposition did not extend to CP. * Additional property awarded to the W is not enough to justify the conclusion that such provision was intended to be in lieu of her interest as survivor of the community.

Answer 88

* Estate of Wolfe, 48 Cal. 2d 570, 311 (1957): The TC found in this case that all of the property in which H had an interest at the time of his death was the CP of the spouses. The purpose of the election is to adjust the distribution of the property under the will to conform to the express or implied intention of the testator. * If an election is necessary, W in this case may claim her share of CP or she may reject her claim under CP law and take her share under the will.

Answer 89

* Estate of Coffee, 19 Cal. 2d 248 (1941): W’s share is the ½ which remains after the payment of the H’s debts and expenses of administration apportioned between the community and separate property. * Upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse.

Answer 90

Community property is property acquired during marriage while domiciled in a community property state. Assets acquired during marriage are presumed to be CP unless they can be traced back to being acquired through SP means or there was a prior agreement to retain the property as SP. Quasi-community property is property acquired during marriage that may have been in a non-community property jurisdiction. This includes funds earned form labor, but excludes property acquired from gift, will, inheritance, or through use of separate property funds.

Answer 91

If there is a physical separation of parties where the parties unequivocally demonstrate that they do not intend to resume the marriage, property acquired during this time may be deemed separate property.

Answer 92

Gifts of community property made by one spouse must have the written consent of the other spouse.

Answer 93

Usually, with a summons comes restraining order verbiage that restricts both spouses from doing the following: removing children from the state, cashing, borrowing against, transferring, disposing of, changing beneficiaries of insurance, transferring, encumbering, hypothecating, concealing, disposing of real or personal property w/o consent unless normal course of life.

Answer 94

Each spouse has the fiduciary duty to act in the highest good faith and fair dealing with respect to the other spouse in management and control of CP. A spouse must provide any information concerning CP as reasonably necessary for exercise of spouse's rights. Managing spouse must obtain consent of nonmanaging spouse before making gifts of CP, conveying or encumbering CP including clothing, selling, leasing, disposing of substantially all personal property used in a CP business, or convening, encumbering or leasing real property. Breach of fiduciary duty results when there is a substantial impairment of the nonmanaging spouse's CP interest. Nonmanaging spouse may seek order of accounting and reformation of title and may have claim against spouse (statute of limitations is 3 years after date of knowledge of act, unless death or divorce, then no SOL). There is criminal liability for intentional damage of CP or other spouse's SP.

Answer 95

Economic community begins at registration, and CP rules kick in.

Answer 96

Prior to 1985, property acquired during marriage was presumed to be CP unless there was a written or oral agreement that it was intended to be SP. After 1985, property acquired during marriage was presumed to be CP unless there was an agreement in WRITING, signed by the party adversely affected, that they intended to change the character of ownership.

Answer 97

CP presumption may be overcome by showing that the property was acquired through gift or is the fruit of SP.

Answer 98

If a spouse has a choice and elects to receive disability benefits in lieu of matured retirement benefits, the disability is considered CP. Only the amount of disability that exceeds the amount of retirement benefits that would have been received is considered loss of earning capacity and is, therefore, SP. Doesn't matter when right to disability payments was earned.

Answer 99

The amount each spouse will receive is calculated using the “time rule,” which divides the years of service the spouse with the retirement benefits put in during the years they were married by the total years of service, multiplied by the benefit amount, and divided by two.

Answer 100

Retirement benefits earned during marriage are community property and subject to equal division. Retirement benefits cannot be withheld from the nonearning spouse at the time of dissolution whether or not the earning spouse has decided to retire yet or hold off on his retirement. The earning spouse has the option to buy out the nonearning spouse's interest in the retirement funds using other assets allocated to them so that they may leave the retirement account intact. Also may be forced to remove funds to pay spouse through QDRO. If earning spouse passes away, nonearning spouse still entitled to benefits.

Answer 101

Recovery for injury from arising during marriage from third party = CP; from spouse = SP. If after separation and expenses were paid from CP funds, reimburse community.

Answer 102

Prior to 1985, any SP contributions to CP assets were deemed to be a gift to the community unless there was an agreement for reimbursement. After 1985, SP contributions will automatically be reimbursed because otherwise it would be depriving the contributing spouse of a vested property interest.

Answer 103

What are the legal requirements for marriage in California? Both parties must have the legal capacity to marry No other active previous active marriage (void) What would make the marriage voidable? The parties must satisfy the legal requirements for contracting a marriage? Duly formalized ceremonial unions are licensed, witnessed and registered. (*) What is the process in CA? What about Common Law Marriage?

Answer 104

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) : 14 same sex couples claim the respondents violate the 14th amendment by denying the right to marry or have their marriages lawfully performed in another State. Petitioner’s argue: We don’t want to erode marriage, we just want the right to marry. “Far from seeking to devalue marriage, the petitioner’s seek for themselves b/c of their respect and need for its privileges and responsibilities” Obergefell v. Hodges, 135 S. Ct. 2584 (2015) Contd: Obergegell met his partner 2 decades ago. In 2011, his partner was diagnosed with ALS. The parties married in Maryland where same sex marriage was legal, then his partner passed away. What was the problem with Ohio law? 2nd Couple: The parties (Michigan) had a commitment ceremony to honor their union in 2007. The parties fostered children. What was the problem with Michigan law? 3rd Couple: Parties marry in Tennessee, one party deploys to Afghanistan, before his deployment, they marry in NY. What is the problem here? Obergefell v. Hodges, 135 S. Ct. 2584 (2015) Contd.: In 1993,HI Supreme Court held that Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny. 1996 Congress passed the Defense of Marriage Act (DOMA) which defined married (federal law) as a legal union between one man and one woman as husband and wife. 2013 in the United States v. Windsor, the Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where the were licensed. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) Contd.: (1) “The right to personal choice regarding marriage is inherent in the concept of individual autonomy.” (2) “The right to marry is fundamental b/c it supports a two –person union unlike any other in its importance to the committed individuals.” (3) “It safeguards children and families and thus draws meaning from related rights to child rearing, procreation, and education.” Excluding same sex couples from marriage thus conflicts with a central premise of the right to marry. (4) “Marriage is the keystone of our social order.” Obergefell v. Hodges, 135 S. Ct. 2584 (2015) Contd.: “ The limitation of marriage to opposite-sex couples may long have seemed natural and just, but is inconsistent with the central meaning of the fundamental right to marry is now manifest. … “Laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Do other states have to recognize same sex marriages? What about CA ? Pg. 55

Answer 105

FC Section 297 Registered Domestic Partners: (1999) “ Two adults who have chosen to share another’s lives in an intimate and committed relationship of mutual caring.” What are the requirements? Two unmarried adults who are of the same sex or if they are opposite sex, one or both are over the age of 62 and qualify for Social Security benefits. Must share a residence and file a Declaration of Domestic Partnership with the California Secretary of State. Why Domestic Partnership?

Answer 106

Estate of Vargas, 36 Cal. App. 3d 714 (1974): For 24 years H lived a double life as H and father to 2 separate families, neither of which know of the other’s existence. In 1969 H passed away intestate. The probate court divided the estate equally between the two wives. W1: Married H in 1929 and lived in LA until H’s death. W2: Met Husband in 1942 while employed in his business, married in 1945. W2 know of his first marriage but H assured her that he divorced W1. After 1949 H returned to W1 and told W2 he was staying in Long Beach. TC held that W2 was a putative spouse. Estate of Vargas, 36 Cal. App. 3d 714 (1974) contd: “An innocent participant who has duly solemnized a matrimonial union which is void b/c of some legal infirmity acquires the status of putative spouse.” Although W2’s marriage was void b/c of H’s marriage of W1, W2 married H in the good faith belief he was divorced from W1. FC 2251 and 2254 provide that putative spouse shall enjoy the same property and support rights as a lawful spouse. What happens when the good faith expires?

Answer 107

Ceja v. Rudolph & Sletten, Inc., 56 Cal. 4th 1113 (2013): What is good faith? H and W1were wed in 1995. When H met W2 in 1999, he told W2 that he was married but separated. In 2001, H filed for divorce to W1 and started living with W2. In 2003, W2 and H filed out a license and certificate of marriage and marked “0in the space for listing H’s previous marriage to W1. H and W1 were still married when the parties completed the documents. The judgment of dissolution from W1 was not issued until 12/2003. Did W2 have a good faith belief that her marriage to H was valid? Is the belief subjective of objective? Ceja v. Rudolph & Sletten, Inc., 56 Cal. 4th 1113 (2013) contd.: “Good faith inquiry is purely subjective and evaluates the state of mind of the alleged putative spouse, and that the reasonableness of the claimed belief is properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly made.” Putative Spouse: “the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid. The good faith inquiry is a subjective one that focuses on the actual state of mind of the putative spouse. Good Faith: The Court must consider the “totality of the circumstances”

Answer 108

Marriage of Cary, 34 Cal. App. 3d (1973): The parties never married but lived together for more than 8 years. During that time, they held themselves out to their friends and parents, as a married couple and W used the name Cary. They purchased a home and other property, etc. The relationship between the parties and their children can be deemed that of a “family.” “The Community Property” principle has frequently been applied where one or both of the parties mistakenly, but in good faith, believed themselves married. This change in the law is the elimination of fault or guilt as grounds for granting or denying divorce and for refusing alimony and making unequal division of community property. Marriage of Cary, 34 Cal. App. 3d (1973): H argued: The FC does not expressly cover this situation, and the Court must leave the parties where it finds them should be the law. COA: “We should be obliged to presume a legislative intent that a person, who by deceit leads another to believe a valid marriage exits between them, shall be legally guaranteed ½ of the property they acquire even though most, or all, may have resulted from the earnings of the blameless partner. At the same time we must infer that an inconsistent legislative intent that two persons who, candidly with each other, enter upon an unmarried family relationship, shall be denied any judicial aid whatever in the assertion of otherwise valid property rights.” Marriage of Cary, 34 Cal. App. 3d (1973): “Guilt” and “Innocence” are no longer relevant in the determination of family property rights. B/c the TC disregarded evidence of “guilt” of the parties, it was obliged to divide their property evenly. In applying the rule, there must be an “actual family relationship, with cohabitation and mutual recognition and assumption of the usual rights, duties, and obligations attending marriage.” Does this a lot like a “common law marriage? “

Answer 109

Marvin v. Marvin, 18 Cal. 3d 660 (1976): (1) Family Code does not apply to distribution of property acquired during a nonmarital relationship. (2) The courts should enforce express contracts between nonmarital partners except that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tactic understanding between the parties. The courts may also employ the doctrine of “Quantum Meruit” or equitable remedies such as ”Constructive” or “Resulting” trusts. Marvin v. Marvin, 18 Cal. 3d 660 (1976): The parties lived together for seven years w/o marrying; all property during this period was taken in H’s name. (What does this mean for W and the Married Women’s Presumption?). W then sued to enforce a contract under which she was entitled to ½ the property and to support payments. The TC ruled for H. W argues that the parties entered into an agreement in October in 1964 that while the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated a result of their efforts whether individual or combined. Marvin v. Marvin, 18 Cal. 3d 660 (1976) contd. Plaintiff’s Argument Contd.: The parties further agreed to hold themselves out to the general public as husband and wife and she would further render her services as a companion, homemaker, housekeeper and cook to Defendant. Plaintiff further agreed to give up her career as an entertainer and singer to devote all of her time to Defendant and in return Defendant agreed to provide for all of Plaintiff’s financial support and needs for the rest of her life. Plaintiff lived with Defendant from 10/1964 through May of 1970. What does D argue? Marvin v. Marvin, 18 Cal. 3d 660 (1976) contd.: Defendant’s Arguments: 1. Alleged contract is so closely related to the supposed “immoral” character of the relationship between P and himself that the enforcement of such contract would violate public policy. 2. 1964 contract violated public policy b/c it impaired the community property rights of Defendant’s legal wife. 3. Enforcement of oral contracts for marriage settlements must be in writing. 4. No cause of action arises for “breach of promise of marriage.” How does the Court respond to each argument? Marvin v. Marvin, 18 Cal. 3d 660 (1976) contd. Court’s Response to Defendant’s Argument: 1. A review of the CA decisions concerning contracts between non marital partners, however, reveals that the courts had not employed such a broad and uncertain standards to strike down contracts. 2. Enforcement of the contract between P and D against property awarded to D by the divorce decree will not impair any right of legal W and there is no violation of public policy. 3. The contract at issue here does not fall w/in this definition. 4. This argument does not apply here. Marvin v. Marvin, 18 Cal. 3d 660 (1976) contd. : “Adults who voluntarily live together and engage in sexual relations are as competent as any other persons to contract respecting their earnings and property rights.” The court distinguished Cary and stated the court would not treat nonmarital partners as putatively married persons. ”Judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed.” What happens when cohabitation is followed by marriage? “Tacking” What happen in Marvin II?

Answer 110

Marriage of Baragry, 73 Cal. App 3d (1977): H moved out of the residence on 8/4/71. Even after H moved out, he continued to stay in close contact with his family. What is legal separation? Living separate and apart refers to that condition when spouses have come to a partying of the ways with no present intention of resuming the marital relations. Is there a “complete and final break?” What did the court hold here? Must the parties live in separate residences for legal separation?

Answer 111

Marriage of Davis, 61 Cal. 4th 846 (2015): H and W were married in 1993 and W filed for dissolution in December of 2008. W used June 1, 2006, as the DOS and H used January of 2009. The TC and COA affirmed the June 1, 2006, DOS. (Norviel) H stated the parties can not live separate and apart if they share a residence? W stated, the court should consider the totality of the circumstances and decide the DOS based on conduct by either or both of the spouses which shows a complete and final intent to part ways with no plan of resuming the marital relationship, even if the parties still live together. What does Makeig say? Marriage of Davis, 61 Cal. 4th 846 (2015) contd.: Hardin court held that “both subjective intent to end the marriage and objective conduct demonstrating such intent is necessary for legal separation.” In the previous cases, one party moved to a separate places of the residence. This court held that “living separate and apart” requires that one parties live in separate residences and at least one of them has the subjective intent to end the marital relationship, which is expressed by objective evidence. What does Family Code Section 70 say in response to Davis?

Answer 112

Boggs v. Boggs, 520 U.S. 833 (1997): Does ERISA (a federal law) preempt state law allowing a nonparticipant spouse to transfer by testamentary instrument an interest in undistributed pension plan benefits? What does the court hold? H worked for employer from 1949 to 1985. H and W1 were married when he began working for the company and remained together until the death of W1 in 1979. After W1’s death, H married W2 and remained married until his death in 1989. W1 and H had 3 sons together. At his retirement H received payments from 1) Savings Plan (IRA) 2) 96 shares of stock and 3) monthly annuity payment during his retirement of $1,777 a month. Boggs v. Boggs, 520 U.S. 833 (1997) contd. : The sons now claim a portion of the benefits based on W1’s will. Absent pre-emption, LA law controls and that under the will W1 would dispose of her CP interest in H’s pension plan benefits. W2 claims the transfer in W1’s will is pre-empted by ERISA. ERISA is designed to ensure the proper administration of pension and welfare plans, both during the years of the employee’s active service and in his or her retirement years. The issue is ERISA pension law v. state community property law. Boggs v. Boggs, 520 U.S. 833 (1997) contd.: ERISA requires the annuity to be paid “to a non participant surviving spouse.” Because W2 is the surviving spouse she is entitled to the annuity under the provisions. The annuity is to support the surviving spouse. Allowing another spouse to will away interest in the survivor’s annuity would reduce a surviving spouse’s payment. The annuity is Pre Empted. What about the IRA and the Stock? Outside of a QDRO and or named beneficiaries, ERISA plans do not allow any other transfer of retirement benefits. What happens if a non participating spouse passes before the employee spouse under Erisa? (Branco).

Answer 113

What is Fiduciary Duty?* The spouse who manages and controls a particular community asset acts as fiduciary with respect to the other spouse’s interest in the asset. In 1991 and again in 2002 the Family Code amended 721, 1100 and 1101 to strengthen the position of ”nonmanging spouses” Review the code sections on 424-425 and be sure to note the changes to the rules.

Answer 114

Marriage of Schultz, 105 Cal. App. 3d 846 (1980): Husband incurred debt during the marriage which he failed to pay. The creditor sought judgment against Husband and won. The TC awarded a portion of the debt to W and the rest to H. FC 2550 requires equal division of debt with the exception of FC 2602. What does FC 2602 say? What did this Court rule? Was the Trial Court sustained or overruled?

Answer 115

Marriage of Moore, 28 Cal. 3d 366 (1980): H was a alcoholic and w/o tangible evidence, W claimed that H sold community items to purchase alcoholic beverages, but she did not know the sums of money he received. What do we know about gifts from the community? What did the Trial Court hold? What did this Court say?

Answer 116

Marriage of Beltran, 183 Cal. App. 3d 292 (1986): While their divorce was pending, H was convicted of committing lewd acts upon a child under 14. The TC charged H with receipt of the forfeited military pension and accrued leave pay and H was ordered to pay ½ of the assets to W. In Re Marriage of Stitt: W incurred fees for defending against criminal charges. The debt was assigned to W only as her separate debt. What does Husband distinguish his case from Stitt? What did this Court say about Husband’s position?

Answer 117

What about “unsound investments?” Does the same rules apply? In Re Marriage of Duffy Marriage of Lucero, 118 Cal. App. 3d 836 (1981): We discussed this case when we discussed retirement accounts. Why is this case here?

Answer 118

Somps v. Somps, 250 Cal. Capp. 2d 328 (1967): H purchased property with his SP and the wife said H should have purchased with CP. What did the Court say about W’s position?

Answer 119

Grolemund v. Cafferata, 17 Cal. 2d 679 (1941): H was held negligent in a car accident and there was a judgment against him. What does this case tell us? What about FC 1000 (b) Pg. 439-443 have the most up-to-date rules on debts. What does FC 910 and 911 say? Problem 4 on page 446.

Answer 120

Out of State Property Acquired by CA Domiciliaries: Often the parties meet the “in personam jurisdiction” requirements and the parties may lack “in rem” requirements. Do you know what the requirements are here in CA? When this happens, the court can order one part to convey their interest in out-of-state realty to the other. What happens if the title-holding party leaves the forum state? What about full faith and credit?

Answer 121

What about California’s Decedent’s Out-of-State Assets: Where was the decedent at the time of death? Assets may be distributed in a nondomiciliary forum but does the nondomiciliary forum have to use, for our purposes, CA law?

Answer 122

What do we know about CP? FC 760 FC 2660 allows for the division of out-of-state community realty and provides ways in which to do so. What about FC 2550? Does this warrant an exception to the “in-kind division” rule? What about default judgments? Or when one party is domiciled in another state?

Answer 123

“Quasi Community Property:” Typically one spouse will request assets titled in the other spouse’s name in a different state. A couples resides in New York and moves to California to retire. There is substantial personal property in NY titled in H’s name alone. “Lex Locus” Choice of Law: Title to personal property is determined by the law of the jurisdiction in which the parties where domiciled at the time the property was acquired, the property may be deemed H’s SP. Current Law: Law of current domicile controls. What would this mean for W? Problem on pg. 647

Answer 124

Addison v. Addison*: The parties acquired wealth in IL and moved to CA, and continued to acquire wealth. H contended that the property held in H’s name was acquired by the use of the property from IL which would have been CP if acquired while in CA. The TC held the QCP statutes to be unconstitutional. … Upon acquisition of the property the H obtained vested rights which could not be altered w/o violation of his privileges and immunities as a citizen, and such rights can not be taken w/o due process. (Retroactive application problem) Estate of Thornton Addison says there must be 1) BOTH parties changed their domicile and 2) AFTER the change, the parties sought legal alteration of their marital status. When does the current law control? Pg. 657

Answer 125

Marriage of Roesch*, 83 Cal. App. 3d 96 (1979): Parties married in Pennsylvania and separated in Pennsylvania. H left the household and moved to CA. The TC applied to QCP statutes. What did this Court say? Property acquired by a spouse in a common law state does not lose its character as the SP of the acquiring spouse upon a change of domicile to a CP state. (Addison) The court also reviewed the two party test in Addison for allowing the application of QCP. (Addison) Vested interest rights (Thornton)

Answer 126

Marriage of Martin, 156 Ariz. 440 (1986): Parties were married in Wyoming. After traveling all around the world the parties became domiciled in CA. The parties then purchased a retirement home in AZ and W moved to the retirement home. H appealed from the classification by AZ that his earnings were CP post separation. What does the AZ court hold?

Answer 127

Marriage of Jacobson, 161 Cal. App. 3d 465 (1984): H wanted Iowa law to apply to his pension. W filed for legal separation (why legal separation?). H “specially appears” and objects. The parties stipulated allowing the use of CA law (what did Husband do by signing this stipulation?). Husband also responded to the Request for legal separation. TC found that H consented to the court’s jurisdiction by signing the stipulatinf and filing a response. Court of Appeal: Consent to CA Jurisdiction stands Marriage of Roesch factors met, how?

Answer 128

Marriage of Fransen, 142 Cal. App. 3d 419 (1983): W was awarded .5 share of her H’s military pension (why 5%?). Parties were married in 1943 in San Jose, CA. The parties moved to Oregon in 1966. W came to visit her daughter in 1966 and H informed her not to move back. H then moved to Idaho and filed for divorce. H was awarded a default judgment in Idaho which only included a pick up truck. H eventually makes his way back to CA. W filed for divorce in Ventura and requested spousal support and community share of the pension plan. H objected and stated Idaho settled all matters, but the divorce did not cover all matters. Marriage of Fransen, 142 Cal. App. 3d 419 (1983) contd. : TC awarded wife 5% of the pension and spousal support and attorney fees and costs. What did this Court say about the award of the pension? What was the Community Interest? Was there a QP interest? What did this court say about Roesch? The first requirement requires both parties to reside in California. What about the second requirement?

Answer 129

Marriage of Ben-Yehoshua, 91. Cal. App. 3d 259 (1979): W if a United States citizen, H is a citizen of Israel. W filed a Petition for legal separation. H came to CA accepted service and appeared (why does this matter?). Both parties initiate Petition proceedings in their respective home courts. What is the holding in this case? What is CA allowed to do pursuant to FC 125 (QCP?) What happens when the parties leave CA? Quintana v. Quintana: Parties were married in Cuba and later moved to FL. H purchased stock during the marriage and while domiciled in CUBA. What did this FL court hold?