Community Property Flashcards
How is a permanent separation defined?
Physical separation
Intent to separate
What is quasi community property?
Acquired in some other state, but would be community property in California
What is the married woman’s special presumption?
Property acquired by a married woman before 1975 in her name alone is her separate property
What is a putative spouse?
Where a marriage is void/voidable, and at least one party believed in good faith that the marriage was valid, courts treat the party/parties as putative spouses
How does estoppel apply to marriage?
A party who knows the marriage is invalid is estopped from asserting the invalidity of the marriage
How do courts treat unmarried cohabitants?
Applying general contract law
How is property of each party classified after permanent separation?
Separate property
What property is presumed to be cp?
Acquired by a married person during the marriage while domiciled in California
What property is presumed to be sp?
Property acquired before marriage
Gift, bequest, decide or descent
Rents and profits from sp
Earnings and accumulations while living apart or legally separated
What is quasi-marital property?
Property acquired during a void or voidable marriage which would have been cp or qcp had the marriage been valid.
Under the mwsp, how is property owned by a married woman and a third person treated?
Tenancy in common
When do reimbursements of sp apply?
Down payments
Improvements
Principal
What is the burden of proof on the spouse claiming sp?
Each asset was acquired with sp funds
How do courts trace to determine asset was acquired with sp?
Exhaustion method - show that cp resources exhausted and only so available
Direct tracing - show that there were directly enough funds of sp to make purchase and intent was to use sp funds to make purchase
What happens if the court is unable to tease sp?
It will be deemed cp
Who has management and control over community personal property?
Either spouse with power or disposition other than testamentarty, as they would have with their separate property estate
A spouse may not gift or dispose of community persons property for less than fair value without what?
Written consent of other spouse
When must a spouse managing community property give written notice of a sale?
Where the sale is of all or substantially all of the personal property used in the business operations
What does Lucas hold?
At death and prior to 1984, all property jointly held by h and w is cp, no right to reimbursement for gift from sp to cp
What does Anti-Lucas stand for?
At divorce from 1/1/1984 to 12/31/86, property titled as JT owned by h and w presumed to be cp unless there is a written agreement that property is sp with reimbursement
What does anti Lucas 2 hold?
At divorce from 1/1/87 on, any jointly held title be h and w is presumed to be cp unless there is clear written agreement that property is sp with reimbursement
When may a spouse convey, sell or encumber community personal property used in the family dwelling including furnishings, clothing of children and clothing of the other spouse?
Written consent of the other spouse
How must an instrument to lease community real property for over a year be executed?
By both spouses
What happens to a conveyance of community real property by one spouse to bfp?
Presumed valid, can be voided by other spouse within one year of filing the instrument
What should be considered any time a spouse is acting alone regarding property?
Fiduciary duty
What are the requirements of a premarital agreement?
Writing
Signed by both parties
When are premarital agreements not enforceable?
Involuntary
Unconscionable
Lack full disclosure
Premarital agreements are deemed involuntary unless…
Represented by independent counsel or advised to seek independent counsel and waived in writing
Presented with agreement and advised to seek independent counsel 7 days before signing
Fully informed in writing of rights and terms party is giving up
Can child support be waived in a premarital agreement?
No
Can spouse support be waived in a premarital agreement?
Yes if independent counsel represented spouse when agreement signed and is not unconscionable
What are the defenses to a premarital agreement?
Laches
Estoppel
What is transmutation?
An agreement between spouses to change character of an asset, (cp to sp)
What is the difference between transmutation before 1/1/85 and after 1/1/85?
Before: transmutations could be oral, written or inferred
After: transmutations must be made in writing with an express declaration by spouse adversely affected
Are statements in a will admissible of evidence of a transmutation of property before the death of the person who made the will?
No
If personal injury recovery happens during marriage how is the money received classified?
Community property
If personal injury happens after marriage or separation how is the money recovered classified?
Assigned to injured spouse unless justice requires otherwise
How is reimbursement handled where the community or separate property of the noninjured spouse incurred expenses on behalf of the injured spouse?
Cp or sp of noninjured spouse entitled to reimbursement from sp money received by injured spouse for expenses incurred on behalf of injured spouse
What happens when one spouse commits a tort against the other?
Tortfeasor spouse must exhaust sp before cp is used to discharge liability for injury to one spouse caused by the other
How are pension plans earned during the marriage classified?
Cp, regardless of when vested
What are the two approaches courts take to dividing pensions?
Reservation of jurisdiction
Cash out
Under the reservation of jurisdiction approach, how does the court divide a pension?
Reserves jurisdiction over a case until employed spouse retired and then apportions retirement.
-non employed spouse can elect to receive their share at the earliest time the employed spouse could retire
How is it determined what percentage of a pension is cp?
Divide the number of years when the spouse was married before separation by the total number of years the spouse owned the pension.
What is the cash-out approach to dividing pensions?
Court assigns the entire pension to the employed spouse and awards other community assets equal to the community interest in the retirement benefit to the nonemployed spouse
What determines whether disability/worker’s compensation is classified as cp or sp?
Based on what the compensation was intended to replace, regardless of when it was paid
When is the community entitled to reimbursement for community contributions to educational expenses?
If the education substantially enhanced the earning capacity of the party
When may reimbursement to the community for educational expenses be reduced or modified?
- The community already substantially benefited from the education (10 years)
- The education is offset by the education of the other spouse
- Education reduced the need for spousal support
How is life insurance classified as a cp or sp?
Estate paying premiums controls.
Sp interest = amount sp contributed / total amount contributed
How is control of term life insurance determined?
The estate that paid the premium for the latest term controls
Can a spouse devise of cp life insurance?
Yes, but decedent can only devise half of it to beneficiary other than spouse without written permission from the spouse
When does the Pereira approach apply to community property?
When spouses management skills are primary reason for business growth
How is the sp interest calculated under the Pereira approach?
Initial capital contribution to business + (initial capital contribution to business x 10%) x years married with business
Note: Cp interest is value of business - sp interest
When is the van camp approach used to determine the cp/sp interest in a business?
When the character of the business is the primary reason for the business growth
How is interest calculated under Van Camp?
CP interest = Value of manager spouse’s service x years married) - (actual compensation) - (family expenses paid from business earnings x # of years married) - cp interest
What happens when cp is used to improve the other spouse’s sp?
A gift is presumed absent an agreement to reimburse (majority)
What happens when cp is used to improve a spouse’s own sp?
The cp is reimbursed for the amount spent on the improvement or the increase in value to the sp, whichever is greater
