community property

Question 1

CONCLUSION

Answer 1

In conclusion,

the condo is CP and subject to equal division,

(or equally divided)

the bank account is CP and subject to equal division,

the rental property is CP and subject to equal division

unless the court finds that it should deviate from this rule because of Wanda’s breach of her fiduciary duty,

and the hospital bill, despite being Wanda’s separate debt,

is a necessary of life which Harry may be required to pay for with CP and/or his SP.

Question 2

Before start writing..

Answer 2

Because H and W married and resided in CA, CA law applies.

Question 3

Characterization of property as either CP or Sp depends on…

A spouse’s effort , skill and industry during marriage is ..

Answer 3

Characterization of property as either CP or Sp depends on…
1)legal presumption affecting the property

the burden is on the spouse opposing SP to defeat the CP presumption,

2)trace the source of the funds used to aquire the property

The fact that the @ were put into an account in H’s name doe not change the fact that the funds are community propety.

3)any actions of the parties that may have changed the character of the property

short: Property purchased during marriage is presumed CP unless that presumption is be rebutted through tracing the source or other mean to show that it was in fact SP.
* There are no facts to indicate that the partties changed the character of the mirror and therefore the CP presumption is controlling*
* Using Cp to pay the mortgage on SP did not alter the character of the townhouse from SP to CP*

A spouse’s effort , skill and industry during marriage is a CP asset.

Question 4

California is a community property　state..…

• The character of a personal injury award is determined when*
• Upon divorce, CP will be*
• At death CP will be*

Answer 4

Gift も場合によって検討する！

All property acquired during marriage is presumed community property.

Separate property(SP)includes property owned before marriage, property acquired by gift, will or inheritance during marriage,rents , issues and profits from SP, and earnings after permanent Physical separation.

This presumption can be rebutted by tracing to a Sp source orby an agreement to the writing to the contrary(premarital agreement).

Upon divorce, CP will be devided equally

unless some special rule applies or the spouse agree otherwise in writing or orally in open court.

At death, in absence of a valid will, CP will be inhereited by the surviving spouse.

• # The character of a personal injury award is determined when the cause of action arose,*
• # There is no transmutation affecting this join account.*

Question 5

the way to examine 1 2 3

The fact that such wages are deposited into an account in the sole name of just one spouse /….

Answer 5

Source ⇒transmutation ⇒division by divorce(death)

• In 2007,while married to H,W inherited $150000 W used the 150000 inheritance to purchase the stock. Thus the source of the stock was W’s inheritance which is W’s Sp*
• # Here the mirror was purchased during their marriage with their earnings. Since all earnings during marriage are CP and the building was purchased with CP it does not matter that W had taken title of the building in her name alone/*
• # (Because @was held in joint title, there is a presumption that W intended it as a gift to the community)*

This presumption can be rebutted by tracing to a Sp source or by an agreement to the writing to the contrary.

# Here, W can trace the 50000 used for acquisition of the stock to her 15000 inheritance W’s inheritance. W’s inheritance is her SP Thus the general Cp presumption is rebutted by tracing the funds used to purchase the stock to a SP source, the inheritance.

The fact that such wages are deposited into an account in the sole name of just one spouse does not alter the character of the funds. ←入れる

Question 6

Necklace acquired and give n to the wife during his marriage

Answer 6

Here, the necklace was acquired in 2011 while H and W were still married Thus the N is presumed to be the CP. However, H will be able to rebut the presumption by tracing back to the source of the fund used to purchase the necklace. Here when H gave W the Necklace no transmutation occurred because there was no express declaration in writing signed by H Exception Gift of personal nature

Question 7

all property acquired in a non community propety state is considered…

Answer 7

all property acquired in a non community propety state is considered quasi community property if the couple now resides in California quasi community property are treated as SP during marriage and treated as community property at death or divorce

Question 8

Parties may transmute property…

Exception

Answer 8

Parties may transmute property from SP to Cp, Cp to SP , one spouse Sp to SP.

Any transmutation must be in writing clearly state the change in character of the propety and be signed by the spouse whose interest is adversely** affected**. (exception used solelyby that spouse and it is not valueble)

the fact that .. is not sufficient evidence of a transmutation

One exception to the writing requirement is gifts of personal property given by one souse to another spouse that are not substantial in value and used in the home.

Holding property in the name of one spouse does not defeat the community presumption when the property was acquired during marriage.

Question 9

There is an issue as to how

On dissolution W would … On dissolution, H would ..

Answer 9

There is an issue as to how @@should be distributed upon divorce.

H has right of all the stock.

And is liable to reimburse the community for all the funds which used to furnish. have equal right of the rental house. # A is entitled to one half of the property.

Question 10

For CP to given to a third party there must be expressed consent from the other spouse

Answer 10

or CP to given to a third party there must be expressed consent from the other spouse A spouse may not convey her intrest in CP during the marriage unless done through devise. In this case, H can seek the court permission to set aside the sell of the building or settle for ½ the value of the proceeds during the dissolution process. If he is bona fide purchaser (buyer who paid value consideration without notice)

Question 11

spouses owe each other …

Answer 11

spouses owe each other a fiduciary duty.

These duty include the duty to inform the spouse of the status of CP and the duty to obtain consent for major decisions .

If a spouse violates his or her fuduciary duty the other spouse,

as a remedy the other spouse may heve his or her name added to the title of the affected propety, the spouse may be entitled to a larger share of the community property.

Here, W may have breached her duty to obtain consent for major decisions.and she took title in her name alone. At divoece it wll be divided evenly between the two wpouses , with H receiving a larger share as the court deems just due to W’s breach of her fiduciary duties.

Question 12

If there is value increase in SP business by SP funds(or CP ),

P or V accounting method applies on dissolution of the marriage.

*If the business in value because of the spouse’s contribution of effort , not because of market force, which accounting method is better?

Under the P ( ) is SP.

Under the V () is SP

SP business　CP business は対象外

Answer 12

There are two different accounting methods to determine the value of the SP and CP interest.

While Pereira accounting method applies

where the value increase is because of the spouse’s personal effort,

van Camp accounting method applies where the value increase is because of the character of the business.

Here , solely through his own efforts, it propered and is now worth @@

Under Pereira, the SP business value at the time of beginning plus the fair rate(usually 10%) increase of the business is SP.

The rest is CP.

Under Van camp the community receives a multiply with average annual salary for labor for * years (CP),any communit expenses paid and the rest would have been SP.

Here, the restaurant in value because of H’s contribution of effort not because of market forces, the Pereilra is propbably the better formula.

Question 13

The marital economic community begins

まりえこnomicc

Answer 13

Marital economic community begins at marriage and ends at death, divorce , or

when there is permanent physical separation and an intention not to resume the marriage. Intention not to resume the marriage by one spouse only is effective so long as it is communicated to the other spouse

• The fact that H moved out is conduct that supports an intent.Howeer if H moved out with intent to resume marital economy , the MEC would officially end in 2018.*
• Henry moving away permanently is indication of an intention not to resume the marriage, but we would need more facts about intent to make that determination.*

Question 14

at resolution.,A party’s SP contribution to the improvement of CP will be

Answer 14

at resolution.,A party’s SP contribution to the improvement of CP will be entitled to reimbursement

Question 15

A premarital agreement is an agreement between future spouses designating the presumption of Cp eliminated and that their properties and future property acquisitions will be considered Sp. To be valid

Answer 15

premarital agreement is an agreement between future spouses designating the presumption of Cp eliminated and that their properties and future property acquisitions will be considered Sp.

To be valid 7V sa in

1) PA must be voluntary
2) in writinig signed by the parties
3) at least 7 days to read and sign the agreement
4) not against public policy
5) given to independent counsel

Question 16

Community responsibility for debts of one spouse..

mortigage is SD or CD?

thereis no CP debt Community debt

Answer 16

A loan during the marriage is community debt unless

the lender’s primary intent when giving the loan

was solely credit to the H

(ex he used his SP for collateral for the credit purpose)

The lender’s primary intent when giving the loan

determines the character of the loan

If the lender’s looks to SP as security , the moetgages is likely SP …

On divoece, W will be responsible for the mortgage unless justice requires otherwise

if the lender’s looks to CP as security , the moetgages is likely CP

Question 17

If the cause of action occurs during marriage,

Answer 17

the judgment against one of the spouse is CP debt.

Question 18

if the tortfeasor sopouse was acting for the benefit of the marriage not acting for the benefit of the marriage

How allocate at the divorce?

Answer 18

the creditor whoseek personal injury recovery may recover first from CP then the tortfeasor spous’s SP CP >> SP

if the tortfeasor spouse was not acting for the benefit of the marriage the creditor may recover first from the tortfeasor spouse’s Sp then the tortfeasor spouse’s CP SP>> CP

** CP is liable anyway !

@reimbursement

Where CP is used to pay an obligation arising out of spouse’s tort that was committed not during an activity for the benefit of the community, the community is entitled to reimbursement for that payment if the tortfeasor’s SP was available to pay

@division

Typically, a judge will allocate a tort debt to the tortfeasor spouse if the tort was incurred not during an activity for the benefit of the community. However, a judge may take into account ability to pay to effect a more just allocation of debts

Generally, a spouse may not unilaterally encumber community real property without a joint action on behalf of both spouses. Additionally, the spouse may not separately encumber her half interest in the property. The one exception to this rule is for the spouse to satisfy attorney fees in the divorce proceeding between the spouses

Question 19

When the property is acquired in joint and equal form

there is a presumption that the property is CP

(

and

if any SP was used to purchase the propety is subject to the Lucas and anti Lucas stattute.

協同名義の購入に使われたものだけ

On death ,,, On divorce,,,

Answer 19

1) Here, the townhouse was solely in W’s name alone. Therefore, the presumption that arises from joint and equal form and the anti-Lucas (which applies on divorce) and the Lucas (which applies on death) need not be considered.
* 1)*However, this joint presumption does not apply to bank accounts. With bank accounts, a court will allow jointly titled bank accounts to be traced to determine the source of funds and how it should be characterized.
2) Here,he property is acquired in joint and equal form

On death, Lucas applies that without an express agreement to the contrary

The SP used to acquire title in the property in question will be deemed to have been made as a gift to the community.

On divorce, Anti-Lucas apply and without express agreement to the contrary or express wording in the deed,

SP used to acquire the property in joint and equal form is entitled to reimbursement for the _d_own payment, _i_mprovement and _p_rincipal payment of mortgages but not an ownership interest（DIP).

not reimburesed interest,tax,insurance and maintenance

Question 20

Here,

property is not acquired in joint and equal form(so Lucas need not considered)

Where CP funds is used to pay an installment payment on SP,

Upon divorce,,,

Answer 20

the community has a pro rata ownereship share in the property

The community’s interest in the townhouse is as follows

the amount of community funds used to pay the mortgage devided by

the total purchase price.

Here, the townhouse is SP, and under the principal debt reduction method, the CP will receive a pro rata share as follows:

amount of CP funds expended on paying down the debt divided by the total amount of SP

and CP money used to pay off the debt X the increase in value.

Furthermore, the CP is entitled to the funds expended on paying down the debt from H’s account.

Question 21

tytle

1 source

2 presumption

3 actions

Answer 21

1 source

• W uses the ;;; to purchase ;;;*
• Thus the source of ;;;was W’s inheritance, which is W’s SP.*

2 presumption

• All prperty acquired during marriage is presumed CP .*
• This presumption can be rebutted by tracing to a SP source or by agreement to the writing to the contrary, Here ,W can trace the ::used for qcquisition of :: to her ::which is W’s SP.*
• Thus the general CP presumption is rebutted by tracing the source.*

3 The only action taken by the parties with respect to the :: was to pedge it as collateral for the loan to build the rental property, which is not sufficient evidence of a transmutation because ..

Question 22

conclusion

Therefore (the property )will be …

Answer 22

(the property ) will be awarded solely to W as her SP.

Question 23

Improvement of SP with CP

Here, CP was used to improve SP,

Where CP is used to improve a SP asset , the community is

Answer 23

Where CP is used to improve a SP asset ,

the community is entitled to reimbursement for

the vaue of the contributions for down payment,

improvements, and payment of principal ,

plus a pro rata share of the appreciation calculated by dividing the CP contribution by the total contribution of SP and CP.

The fact donot give enough details to make such a caluculation..

but it will be some portion of the present market value.

Question 24

the debt incurred after end of marital the economic community , it will be…

However,,,

Upon divorce,,,

Answer 24

the debt incurred after end of the economic community , it will be separate debt.

However,even after separation, both spouse may be personally liable for payments for the necessities of life of the other spouse incurred before divorce..

The court may be

At divorce community assets are genrally divided under the equal division rule.

However, a judge has more discretion as to the allocation of debts at divorce.

\ex the family home when selling it will uproot the children and cause them harm

Question 25

The decide the stockoption CP or SP, the court will see

Answer 25

whethere the option was granted as reward for past service, or future incentive.

If the options were to reward the employee for past service

the court will take the years of employment during the marriage (2010-2013) divided by the years of employment until exercise (2010-2014).The community will have a 3/4 interest in the stock options under this approach.

If the options are granted as a future insentive,

the court would take the years of marriage from the grant of the option (2012-2013) divided by the option’s grant to its being exercisable (2012-2014)

Question 26

distribution at death

Answer 26

Upon death, surviving spouse is entitled to 100% of CP.

The surviving spouse is entitled to at least 1/3 of decedent- spouse’s SP, depending on how many heirs or issue the decedent left behind.

Question 27

To determine the character of pension, courts use

Answer 27

To determine the character of pension, courts use the time rule. Courts consider the amount of time the spouse worked during marriage to get the pension

divided by the amount of time total the spouse worked to get the pension.

The rationale for the formula is that spouse’s labor during marriage is CP and any funding earned from spouse’s labor is CP. However, W received the pension before she met or married H. As such, the entire pension is her SP. As such, the townhouse was initially

Question 28

When CP and SP funds are commingled,

Unlesss the spouse show

Under the direct-in-direct-out rule

Under the exhaustion rule

Answer 28

the burden is on the spouse claiming that property acquired with funds from that account is SP to show that SP funds were used to acquire the property.

Under the direct-in-direct-out rule the spouse claiming SP must show t there were sufficient SP funds in the account and that the spouse had the intent to purchase the asset with SP funds. Alternatively,

under the exhaustion rule, the spouse claiming SP must show that all the CP funds were used in the account and all that was left in the account was SP

If there are not adequate records and commingling occurs, it is presumed the SP funds used for family expenses are a gift to the community.

Question 29

Under the family expense presumption, it is presumed that

Answer 29

\Under the family expense presumption,

expenditures for community items, such as living, rent, food, etc. are presumptively made from CP.

However, inevitably due to commingling and inadequate records,

SP funds may be used for family expenses.

If there are not adequate records and commingling occurs,

it is presumed the SP funds used for family expenses are a gift to the community.

Question 30

( ) after the separation

Despite the general rule that debts incurred post-separation are the SP debt of the debtor spouse

and that spouse only will be liable for that debt to creditors,

there is an exception for

Answer 30

there is an exception for the “necessaries of life” and debts incurred on their behalf post-separation but before divorce, because of the duty spouses owe to each other to take care of each other during marriage.s of Life

Question 31

tips

Answer 31

characterization of //

THe fact that the property acquired in H’name does not change the fact that the funds were comminity property.

数字が出てきたらtime rule and Pro rataを使いこなす

過去問では毎回新しいマニアックルールが聞かれている pereira, pro-rata share,direct in direct out

毎回これまでにとりあげられていない論点が出るので網羅的に確認したがよい

breach of fiduciary duty を忘れない！

前の質問の結論次第で二問目の結論が変わるとき
So,unless she wereable to enforce the premarital agreement, which she will likely not be able to .W will no be able to argue that the Ris her SP.

SPにCPは返還でなくプロラタ

fee が出てきたら必ずREASONABLE か検討する

Question 32

Since community property was used to pay down the balance of the mortgage, the community

Where a spouse has acquired property before the marriage or acquired property through inheritance and then CP funds are used to pay for the principal of the property, the community estate obtains a pro rata interest in the property based off of the principal debt reduction due to funds paid from the CP

Answer 32

The community has a pro rata interest in the townhouse. The community’s interest in the townhouse is the ratio between the amount of community funds used to pay the mortgage, over the total purchase price.

!!CONTRIBUTION BY COMMUNITY NOT REIMBURESEMENT BUT A PRO RATA INTEREST !!

Question 33

time rule and pro-rata

Answer 33

time rule;

stockoption

the court would take the years of marriage from the grant of the option (2012-2013) divided by the option’s grant to its being exercisable (2012-2014)

pension

Courts consider the amount of time the spouse worked during marriage to get the pensiondivided by the amount of time total the spouse worked to get the pension.

pro-rata share

the amount of community funds used to pay the mortgage devided by

the total purchase price.

Question 35

Property titled in one spouse’s name alone is not presumably SP in CA.

Answer 35

Property titled in one spouse’s name alone is not presumably SP in CA.

Don’t forget check whether there is a breach of fuduciary duty of one spouse if the property was acquired by CP.

Question 36

If there is a intervivo transfer that attempt to gift away QCP?

Answer 36

QCP is generally treated as the acquiring spouses’ SP during his life

However if the acquiring apouse transfers QCP during his life

for less than fair value ,the other spouse has a right to clawback 1/2 of the value.

Question 37

If there is a will that attempt to gift away CP?

Answer 37

At death in the absence of a valid will, CP and QCP owned by the predeceased spouse will generally all be inherited by the surviving spouse.

However if the will attempts to gift away CP or WCP owned by the surviving spouse, the surviving spouse can take against the will and claim all such CP　at the cost of rejecting all gifts under the will.

that means the testator spouse can ony will away all of his SP and 1/2 of CP without surviving spouse consent.

Question 38

QCP is

the probate definition for QCP is different from the diffinition for divorce

Answer 38

QCP is property acquired by either spouse that would have been comunity propety(CP)had the spouses been domiciled in Ca at the time of acquiesition.

At divorce QCP is ttreates as though it were CP .

For probate purpose QCP real propety is limited to real property locatedee in Ca.

Question 39

terms

testator

devisee

omitted child

gift

predeceased spouse

settlor

create a trust

rule against perpetuities

Question 40

rights to manage community property.

This includes the right to.

Answer 40

Each spouse generally has equal rights to manage community property. This includes the right to sell and encumber community property. However, with respect to real property, one spouse may not encumber community owned real property without the other spouse’s consent. If one spouse, without consent, sells or encumbers community real estate, the non-consenting spouse has the power to void that transaction within 1 year.