Community Property Flashcards
Separate Property
Property owned before marriage; property acquired during the marriage by gift, devise, or descent; or the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for medical expenses and loss of earning capacity during the marriage.
Community Property
Property, other than separate property, acquired by either spouse during the marriage.
CP Presumption
The presumption is that property possessed by either spouse on dissolution of the marriage is community property, and any separate property must be established by clear and convincing evidence.
Community Property Funds for Separate Property
When community property funds are used to purchase property in which title is taken in only one spouse’s name as that spouse’s “sole and separate property,” the property will be deemed that spouse’s separate property only if the other spouse participated in the transaction in which title is taken.
Tort Recovery
A tort recovery is the injured spouse’s separate property to the extent that it compensates for disfigurement and pain and suffering. Recovery is community property to the extent that it compensates for community obligations, such as medical expenses, and lost earnings.
If a settlement does not indicate what portion of the recovery is attributable to what type of damage, the entire recovery will be classified as community property.
Inception of Title
The separate or community character of an asset is determined at the time the asset is acquired, and no subsequent actions will alter its character.
CP Funds to Discharge Debt
When community property funds are expended to discharge a secured debt on one spouse’s separate property, the characterization of the property will remain the same, but the community estate may have claim for reimbursement.
Reimbursement Claim
A reimbursement claim provides a spouse a remedy when one marital estate has been used to either contribute to or improve another marital estate.
In a divorce, the court applies equitable principles to: (i) determine whether to recognize the claim after taking into account all of the relative circumstances of the spouses; and (ii) order a division of the claim for reimbursement, if appropriate, in a manner that the court considers just and right, having due regard for the rights of each party.
Royalty Payments
Royalty payments from oil and gas interests in land held as separate property are classified as separate property unless community money or the effort of a spouse was expended in producing it.
Income from Separate Property
Income from either spouse’s separate property is considered community property.
Premarital Agreement
A premarital agreement is unenforceable if the spouse seeking to set it aside proves that she did not sign it voluntarily.
An agreement will be unenforceable if it was unconscionable when signed and the following three part test is met to indicate a disclosure problem: (i) spouse was not provided a fair and reasonable disclosure of the property and financial obligations of the other spouse; (ii) Spouse did not give a written waiver of the right to disclosure; and (iii) spouse did not have adequate knowledge of the other spouse’s property or financial obligations.
Conversion Agreement
Allows married couples to covert separate property into community property.
Common Law Contract Defenses
Common law contract defenses such as fraud and incapacity are relevant to the concept of voluntariness although they are not independent grounds for making a premarital agreement enforceable.
Spousal Maintenance
A spouse may only receive spousal maintenance if the following conditions are met: (i) Spouse will lack sufficient property to provide for his minimum reasonable needs; (ii) the couple were married for more than 10 years; and (iii) Spouse lacks the ability to earn sufficient income to meet his minimum reasonable needs.
Rebuttable Presumption of Maintenance
There is a rebuttable presumption that maintenance based on a 10+ year marriage is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income or developing skills to provide the spouse’s minimum reasonable needs.
