Community Property

Question 1

Community Property

Answer 1

California (CA) is a community property (CP) state. There is a presumption that all property acquired during the marriage is CP. this includes wages of either spouse during the marriage. Separate property (SP) is all property acquired before or after the marriage, as well as gift, will, or inheritance. Courts have to trace to determine the character of property by tracing the source of the funds used to acquire the property

Question 2

Martial Economic Community (MEC)

Answer 2

Begins at marriage and ends at death, divorce or intent of a spouse to permenently seperate. If spouses act as though they are still married, the MECC has not ended.

Question 3

Division of Property

Answer 3

At divorce = CP will be equally divided

Death = 1/2 of CP belongs to surviving spouse and 1/2 to the decedents estate. A decedent can convey all of his SP and 1/2 of CP. If decedent dies without a will, the surviving spouse will get all of the CP and 1/3 of the decedent SP

Question 4

Quasi Community Property

Answer 4

Domiciled in another state but if the property was acquitted in CA it would be CP

Question 5

Putative Spouse/Quasi Martial Property

Answer 5

All property acquired during a void or voidable marriage which would have been CP if the marriage was valid. In order to qualify as a putative spouse, need a good faith belief that they are married, the court will treat it as though it is a valid marriage. The property of a putative spouse is QMP.

Question 6

Lucas

Answer 6

At death and before 1984 all jointly titled property by a couple is presumed to be CP. Anything given from SP is considered a gift. Doesnt apply to bank accounts

Question 7

Anti-Lucus

Answer 7

At divorce all jointly titled property acquired after 1984 is presumed CP unless there is an written agreement that the property is SP. Doesnt apply to bank accounts.

Question 8

Reimbursement (DIP)

Answer 8

SP reimbursements are only allowed for down payments, improvements and principal of a loan

Question 9

Commingled Funds

Answer 9

Commingling funds doesn’t necessarily transform or change the property from SP to CP. If a spouse can trace the SP portion it will still be considered SP. If SP cannot be traced, account is CP

Question 10

Management & Control of CP

Answer 10

• equal power to control CP
• one spouse cant gift or dispose of without permission
• spouse cant sell or give away significant things without written consent
• businesses = managing spouse can make all the decisions but must get written notice to sell

Question 11

Fiduciary Duties

Answer 11

Each spouse has a fiduciary duty to the other spouse to fully disclose all material acts about CP. Must act in good faith and be fair.

Question 12

Premarital Agreement

Answer 12

An agreement made before marriage that becomes effective once married

requirements:

1. written & signed by both spouses
2. voluntary and not unconscionable
3. deemed involuntary unless (a) independent counsel or waived in writing (b) no duress, fraud or undue influence.

cant waive child support

Question 13

Transmutation

Answer 13

An agreement between spouses to change the characterization of an asset. CP to SP or SP to CP. Must be in writing.

Question 14

Personal Injury

Answer 14

• during marriage = CP
• after marriage= injured spouse gets money
• CP or SP of the non injured spouse is entitled to reimbursement for expenses it paid

Question 15

Pension

Answer 15

If Pension is earned during marriage, CP regardless of when the pension vests

Question 16

Education

Answer 16

Not generally considered CP, however, at divorce reimbursement to the community for CP used to pay for education is allowed if the educated spouse earning capacity substantially enhanced, unless the community has already substantially benefited from the education.

Question 17

Contributions/Improvements to SP Business

Answer 17

Where a SP business is enhanced during the marriage, the court will use one of two formulas in order to determine the other spouses share in the SP business

Pereira = Spouses management skills are the primary reason for the business growth. The SP business spouse is entitled to their initial contribution to SP business + 10% x number of years married with business. The remaining value is CP.

Van Camp= character of business is the reason for growth. the community is entitled to the reasonable salary value of spouses labor - any community expenses paid. All else is SP.

Question 18

creditors

Answer 18

1. CP is liable for all debts acquired before and during marriage by either spouse regardless of who acquired the debt
2. A spouses SP is liable for his own debts and not their spouses unless the debt was incurred during the marriage and was a necessary of life for the spouse or child.
3. Where one spouse expends SP to pay a community obligation, he may be entitled to reimbursement from the community if he did not intend a gift and there were sufficient CP funds available at the time, and no other special presumptions
   apply.
4. Injury/Damage = a spouse is not liable for injury or damage caused by the other spouse, unless it benefited the community then the judgment should be from CP first then SP. If it did not benefit the community, SP first then CP.

Question 19

Stocks

Answer 19

Stock options earned during marriage are CP to the extent that CP contributed to them. The court will apply the time rule, dividing the number of years when the spouses got married, and the total years the spouse had the stock

Question 20

Contract Law

Answer 20

Where there is no marriage, there is no community, and any agreements the parties have as to any property would be governed by contract law, unless consideration of the contract is for sexual relations. The party claiming some of the property would have to prove their is a contract between the two.

Question 21

Title of an Assest

Answer 21

Just because a spouse takes title to an asset in his or her name does not change the presumption of community property. Lucas & Anti Lucas