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Texas Essays > Community Property > Flashcards

Community Property Flashcards

1
Q

What types of property are seperate property?

A

Property acquired before marriage
Property acquired during marriage by gift, devise, or descent
Property acquired during marriage purchased with separate property funds if traced

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2
Q

What is the big Community property presumption?

A

All property acquired during or upon dissolution of marriage is presumed community property. Rebuttal requires clear and convincing evidence.

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3
Q

Gifts from one spouse to another are what type of property?

A

separate property, even if done with communuty property funds.

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4
Q

Gifts from a third party to married people is what type of property?

A

TIC property.

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5
Q

What type of property is work wages earned before marriage but received after marriage?

A

Separate property. Inception of title goes to when it was earned, not received.

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6
Q

How is the title of something related to the characterization of property?

A

It has no bearing other than to determine whether it was a gift.

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7
Q

If a spouse uses separate funds to buy a _____ and puts title in both spouse’s names, what type of property?

A

TIC’s. Presumption that he wanted to give a 1/2 interest.

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8
Q

What is inception of title?

A

Charaterization of property is determined by when the spouse obtained rights in the property. If before marriage (like by contract), then it’s separate, even if payments are made after marriage.
But not for pension plans and stock options.

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9
Q

What are exceptions to inception of title rule?

A

Pension plans and stock options.

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10
Q

How are funds in a commingled account characterized?

A

There is a presumption that community funds are used out first, leaving separate funds.
With the identical sum inference, the community out first presumption can be overcome by deposit/withdrawal when they are close in time and close in amount.

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11
Q

How is income from separate property classified?

A

As community property with three exceptions:

1) . when spouses make gifts to each other, the gift is presumed to include all income from the gift.
2) . property under a partition and exchagne agreement
3) . Mineral royalties and bonuses, and the minerals themselves

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12
Q

How are trust disbursements characterized?

A

The interest of the trust during disbursements and principal at the end are separate property, but any income after the principal is disbursed, when the trust has all become seperate property, is community property

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13
Q

How are stock cash dividends characterized?

A

As community property.

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14
Q

How is a stock split characterized?

A

as separate property still

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15
Q

How is a stock dividend cahracterized?

A

As separate property

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16
Q

How are capital gains dividends characterized?

A

As separate property–like selling the stock within the mutual fund–through tracing.

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17
Q

How are tort injuries during marriage classified?

A

current and future wages are community, pain and suffering is separate, and loss of consortium is separate for the non-injured spouse.
Unspecified settlements are Community

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18
Q

How is adversely possessed property characterized?

A

If the possessor entered the property under a claim of right (bad title), then inception of title relates back to the original entry.
If the possessor entered as a naked trespasser, then inception of title starts at when he completes the AP period.

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19
Q

How is a life insurance policy characterized?

A

By when the policy was signed, regardless of when or how much premiums were paid or subsequent renewals. The community can get reimbursement for the premiums paid.

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20
Q

What happens if a spouse gets a life insurance policy naming the spouse as beneficiary then they divorce?

A

Under Texas law, divorce terminates the spouse’s beneficiary status unless,

1) . the divorce decree names the spouse as beneficiary
2) . the spouse renames the same beneficiary after divorce
3) . The spouse was named on the policy as a trustee for either of their children
4) . the life insurnace is part of something under federal law–thereby preempting the state statute.

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21
Q

Can a spouse name someone outside the marriage as a life insurance policy beneficairy without the other spouse’s consent?

A

Yes, unless it constitutes fraud or an improper gift.

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22
Q

How are stock options characterized?

A

Options that are earned by working are split in a pro rata share between seaprate and community property for the time single and the time married.

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23
Q

What are the two types of employee benefit cplans?

A

Defined contribution plans: 401k’s where people put their own money in and employers often match.
Defined benefit plans where there are monthly payment amounts upon retirement based on how long you worked for the company.

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24
Q

How are defined contribution plans characterized?

A

separate or community, dollar for dollar, based on when the contributions are made.

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25
Q

How are defined benefit plans characterized?

A

Post-retirment: Taggart: years employed during marriage/ total years employed at the time of divorce TIMES the benefit amount.
Pre-retirment: Berry: the value of the plan at the time of divorce (often a percentage times average salary) TIMES (years employed during the marriage/ total years employed at the time of divorce)

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26
Q

How can a court divide a retirment plan that is not yet paying out (like Berry)?

A

1) . Pay if, as, and when decree, the plan pays
2) . Qualified domestic relations plan: #1 for ERISA
3) . Cash out: pay a lump sum at the time of divorce, discounted to present value

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27
Q

How are disability benefits and worker’s compensation claims characterized?

A

The same as the wages they replace. Separate before marriage, and community after marriage.
But military disability are separate because federal law preempts them from chracterization and division. the portions paid in lump not directly about military disability are community.

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28
Q

How are corporations and partnerships characterized?

A

by inception of title when the spouse obtianed property in them

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29
Q

How is goodwill chacterized?

A

Business goodwill is a property interest subject to charaterization by inception of title. Personal goodwill is not a property interest and it not subject to characterization.

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30
Q

How is a degree characterized?

A

A degree is not property.

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31
Q

How is debt characterized?

A

Debt incurred during marriage is cummunity debt unless the credit agreed to look only to the borrowing spouse’s separate property for repayment

32
Q

How is a mortgage on seperate property obtained during marriage characterized?

A

IT is community debt, normally, unless it only lists one spouse and it is non-recourse, meaning it can’t garnish the spouse’s wages.

33
Q

How is property acquired in another state characterized?

A

property that would have been community property if acquired in Texas is quasi-community property and treated like community property here.
Quasi seaprate property is treated like separate property and non divisible if it would be treated as separate when acquired here.
Overall treat the property like it was acquired in TExas, but call it quasi-whatever.
But for death:
1. a spouse’s salary is SP
2. title determines ownership, regardless of when it was purchased
3. property doesn’t change character simply by moving to Texas.

34
Q

How is community property divided by a court?

A 
In any just and right division considering:
spouse's education, abilities
disparity of income
disparity of earning capacity
relative physical ocnditions
relative financial condition and obligations
disparity of ages
size of separate estates
size of teh community estate
length of the marriage...
35
Q

How is adultery taken into account in divorce?

A

Texas circuit split:

  1. court can consider it IF spouse is seeking fault-based divorce
  2. court can consider it always
36
Q

What do courts do with closely held corporation assets?

A

The court MAY order periodic payment from the holding spouse

37
Q

How does remarriage affect property?

A

It doesn’t affect property

38
Q

When can a spouse get spousal maintenance?

A

When

1) . 10 year marriage
2) . family violence
3) . spousal disability
4) . child disability

And the spouse seeking maintenance will lack sufficient property to provide for the spouse’s minimum, reasonable needs. No need to spend long-term assets or run up debt.

39
Q

How long can spousal maintenance last?

A

the shortest reasonable period that allows the spouse to earn sufficient income to provide for minimum reasonable needs.
It stopes automatically if either spouse dies, the payee gets remarried or cohabitates

40
Q

How much can spousal maintenance be?

A

lesser of 20% or 20,000$ of the payor’s gross income. court may consider:
spouse’s ability to provide for their minimum sifficient needs
their employment skills
their education
duration of the marriage
age,
physical, emotional condition
the effect of child support obligations
abnormal expenditures of the destruction of CP
contributions to spouse’s education, training
property brought into the marriage…

41
Q

What are the specific requirements for spousal maintenance based on 10+ years of marriage?

A

Exercised diligence in earning sufficient income to provide for the spouse’s minimum reasonable needs or exercised diligence in sufficient skill to provide for the spouses minimum reasonable needs during separation while the divorce is pending.
For a 10–20 year marriage, the payment duration can’t be more than 5 years. 20–30 years gets 7 years; 30+ years get 10 years.

42
Q

What are the specific requirements and limitations for family violence spousal maintenance?

A

conviction or deferred adjucication for criminal family violence committed during the marriage against the spouse of the spouse’s child and within 2 years before dissolution filing or while it was pending.
For marriages less than 10 years, 5 years limitation; 10–20 years is 5 years; 20–30 years is 7 years; and 30+ years is 10 years.

43
Q

What are the specific requirements/limitations for spousal maitnenace based on spousal disability?

A

physical/ mental disability preventing the spouse from earning sufficient income to provide for their minimum sufficient needs.
Limitaion until the disability is gone.

44
Q

What are the specific requirements/limitations for spousal maintenance based on child disability?

A

The child suffers from physical/mentaldisaiblity requiring personal care and substantial supervision preventing the spouse from earning enough to provide for minimum reasonable needs.
Limitation: as long as the disability persists.

45
Q

When can spousal maintenance awards be modified?

A

upon a showing of a material, substantial change, and only decreased, not increased.

46
Q

Cohabitants and spousal maintenance?

A

Courts will not grant spousal maintenance for non-spouses except for putative spouses acting in good faith without knowledge.

47
Q

How are spouses reimbused for payment of separate debt?

A

Separate and Community estates can be reimbursed for benefiting the other estate.
For unsecured debt payments, the paying estate is reimbursable dollar for dollar.
For secured debts the paying party is reimbursable for the principal only.

48
Q

How are spouses reimbursed for property improvements of separate property?

A

The community is reimbursed for the increase in value.

49
Q

How is a community reimbursed for separate property life insurnace payments?

A

dollor for dollar the amount of the premiums.

50
Q

What is TTE?

A

Time, toil, and effort of the spouses, which belongs to the communty. A community is reimburseable for the time, toil, and efforts, a spouse puts into work or maintaining his separate estate beyond what is reasonably necessary to maintain the separate estate.

51
Q

Community gifts to third persons?

A

They are allowed unless they are excessive/ capricious, consituting fraud on the other spouse. Considerations for fraud include who the gift was to and the size of the gift in relation to the community estate. Gifts to unrelated persons are presumed fraudulent

52
Q

What happens when reimbursemetn is not fair?

A

Reimbursment is an equitable remedy that courts can offset with benefits to the community estate, except for use of primary or secondary residence

53
Q

When can a spouse not seek reimbursement?

A

1) . the payment of child support, alimony, or spousal maintenance
2) . living expenses of a spouse or child of a spouse
3) . Nominal contributions of property
4) . Nominal payments toward liability
5) . student loan payments
6) . spousal gifts

54
Q

What are actual and contructive fraud?

A

Actual fraud has intend to deceive and deprive the spouse, while constructive fraud makes frauduelent gifts, but no intend to deceive or deprive.

55
Q

What are the remedies for a fraudulent gift?

A

1) . set aside the gift
2) . if the donor is dead, set aside 1/2 of the gift
3) . post Sept. 2011, calculate a reconstituted estate, including everything in the CP that should have been there and split it in a just and right manner on divorce and split it 50–50 on death

56
Q

What happens is a court discovers that there is property not included in the divorce decree?

A

The undivided assets are owned as tenants in common which can be split with partition. There is a 2 year SOL that starts after one spouse unequivocally repudiates the other spouse’s ownership interest and communicates that to the spouse–this must be more than merely keeping the property.

57
Q

How can divorce divisions be changed if appeal is not sought?

A

Can’t be corrected. Appeal or bust.

58
Q

What can spouses agree to do in a prenup?

A

agree what property wil lbe CP and SP, including trading future income
how to treat property upon seperation, divorce, or death; make wills and trusts; modify or eliminate spousal support; determine management rights; determine what will be seaprate and what will be community…

59
Q

What can people not agree to do in marital/premarital agreements?

A

non-spouses cannot convert community property into separate property
can’t limit child support or child custody
can’t forfeit all community property for divorce (90% is ok)

60
Q

How are premarital agreements made?

A

in writing and signed, no consideration needed.

61
Q

How can prenups be invalidated?

A

1) . it was entered involuntarily or
2) . it was unconscionable when signed and
a. there was no fair disclosure
b. the right to disclosure was not waived, and
c. there wasn’t adequate knowledge of the parties’ property or financial obligations

62
Q

What is partition and exchange?

A

changing current/future community property into separate property. They must be in writing and signed, don’t have to be equal, and don’t need consideration. Can’t defraud a creditor with it.

63
Q

How are partition and exchanges invalidated?

A

1) . it was entered involuntarily or
2) . it was unconscionable when signed and
a. there was no fair disclosure
b. the right to disclosure was not waived, and
c. there wasn’t adequate knowledge of the parties’ property or financial obligations

64
Q

What is a conversion agreement?

A

changing separate property into community property. It must be in writing and signed and identify the property being converted and specify that it is becoming CP.
It must be made during marriage for current separate property, changing the property immediately.
It doesn’t affect pre-existing creditors.

65
Q

How is a conversion agreement invalidated?

A

1) . it was not signed voluntarily or

2) . there was no fair and reasonable disclosure of the legal effect of conversion

66
Q

When is a spousal gift presumed?

A

when a spouse buys property and puts the other spouse’s name on it.

67
Q

How can CP got survivorship rights?

A

signed writing by both spouses that the CP has the right of survivorship. Revocable in signed, written, delivered to other spouse

68
Q

What property does a spouse have sole mangement over?

A

his separate property
property that would be his if he was single, like wages and income from SP

This does not include the homestead, which is always joint management CP

69
Q

What property do spouses have joint managment over?

A

Community property, property purchased with CP, and commingled SMCP with JMCP

70
Q

What are presumptions regarding management of spousal property?

A

If something is taken out in both spouse’s names, it is presumed JMCP.
If a CP asset is taken in one spouse’s name it is preseumed sole management CP.

71
Q

What spousal property can pre-marriage creditors reach?

A

all the debtor’s management property: SP, SMCP, and JMCP

72
Q

What spousal property can marriage creditors reach?

A

For torts: the spouse’s SP, SMCP, JTCP, and other spouse’s SMCP. the only protected property is the other spouse’s SP.
For Contracts, all the debtor’s management property: SP, SMCP, and JTCP. not the other spouse’s SMCP or SP.

73
Q

When can creditors get all of the marriage property?

A

When a spouse acts as the other spouse’s agent or when the creditor is based on necessaries, like rent, medical bills, and food. NOt attorney’s fees.

74
Q

When it debt classified?

A

AT the time the debt is incured. In other words, divorce doesn’t change debt attached to CP.

75
Q

What is a putative marriage?

A

a marriage entered into on a good faith belief it is valid despite its invalidity or impossibility. IF the impediment to the marriage is removed, then it becomes valid.
Putative marriages have marriage benefits for the innocent party, like CP and can have pre-nups enforced to the extent necessary to achieve an equitable result.

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