Community Property Bar

Question 1

For basic assumptions, there are 5 mini paragraphs. What are the main concepts for each mini paragraph?

Answer 1

(1) CA is a community property state and what is CP and what is SP
(2) Who the burden is on and the concept of tracing
(3) MEC begin, end, facade
(4) Upon divorce, distribution of CP assets and liabilities and of SP
(5) At death, what surviving spouse receives

Question 2

First mini paragraph on CA is a CP state and what entails CP and SP

Answer 2

California is a community property state. All property acquired during the marriage is community property. Property is separate property where it is acquired before marriage, after permanent separation, through gift or inheritance, the rents and income derived from separate property, and property purchased with separate property funds.

Question 3

Second mini paragraph on the burden on the spouse

Answer 3

The burden is on the spouse claiming SP to defeat the CP presumption. Courts use the source rule to determine the character of the property by tracing the funds used to acquire the property.

Question 4

Third mini paragraph on MEC

Answer 4

The Marital Economic Community (MEC) begins on the date of marriage. The MEC ends when either spouse dies, upon divorce, or when either spouse evidences the intent to not return to the marital relation coupled with conduct to support such intent. Where a couple maintains the facade of marriage, the MEC has not ended.

Question 5

Fourth mini paragraph on upon divorce

Answer 5

Upon divorce, each spouse is entitled to 1/2 of the CP. This applies to assets as well as to liabilities. Each item of CP should be distributed evenly unless economic circumstances warrant a different distribution. Also, at divorce, each spouse keeps his or her own SP.

Question 6

Fifth and last mini paragraph on upon death

Answer 6

Upon death, the surviving spouse receives 100% of the CP. Also, the surviving spouse is entitled to between a one-third and full interest in the decedent’s SP depending on how many, if any, issue or heirs were left behind.

Question 7

How is income characterized?

Answer 7

Generally, all assets acquired during marriage are CP including income during marriage. The fact that income is placed in a separate account does not change the characterization.
Income made while living and separate apart is not considered within the definition of “during marriage” and is this the spouse’s SP.

Note: Tort awards are not income

Question 8

How are tort awards characerized?

Answer 8

The date that characterizes the award is the date of the accident, not the date when the settlement was received.
Tort awards from before the marriage are SP.
Tort awards from during the marriage are CP during the marriage but are fully treated as the injured spouse’s SP upon divorce, unless the interests of justice dictate otherwise or the money has already been spent.
The CP or the SP of the non-injured spouse can seek reimbursement for expenses related to the injury.
Upon death, the awards are treated as CP.

Question 9

How are tort liabilities characterized? What is the order upon which judgments can be paid?

Answer 9

Tort liabilities are the SP of the tortfeasor spouse unless the tortfeasor spouse was acting in the interests of the community.
Where the tortfeasor spouse did not act in the interests of the community, the tortfeasor’s SP should be exhausted first and then CP. The non tortfeasor spouse’s SP cannot be reached by creditors.

Where the tortfeasor spouse acted in the benefit of the community, the CP should first be exhausted and then the tortfeasor spouse’s SP. The SP of the non-tortfeasor spouse is not liable.

Question 10

How are pensions characterized?

Answer 10

Pensions earned during the marriage are CP, regardless of whether the pensions are received during the marriage or after the marriage.

Where pensions are earned for work before and during marriage, the Time Rule is applied where the CP interest in the pensions is calculated by the number of years married while pension received over the number of total years the pension was received. This share is multiplied by the total amount of pensions available to determine the CP amount.
The remainder is SP. received during the marriage are CP.

Where

Question 11

What is the rule regarding putting your pension benefits in a will and the one exception?

Answer 11

One may bequest their share of continuing benefits with the exception of ERISA benefits, which cannot be included in a will (where federal law preempts CA community property law)

Question 12

Where the spouse eligible for retirement benefits chooses not to retire, what occurs?

Answer 12

The court may order a QDRO, a qualified domestic relations order, upon which the other spouse is entitled to receive benefits as if the spouse had retired.

Question 13

How are stock options treated - overall header

Answer 13

If stock options vest during marriage, they are treated as CP.

If stock options are received during marriage but vest after marriage, one of two formulas is used.

Question 14

If the purpose of the stock options was to incentivize the employee to remain with the company, what is the numerator? [metlife example]

Answer 14

Date the option was granted until the MEC ends

Question 15

What is the denominator?

Answer 15

Date option granted until it becomes exercisable

Question 16

If the purpose is to reward performance, what is the numerator?

Answer 16

Years employee married until MEC ended

Question 17

What is the denominator?

Answer 17

Years employee married until shares became exercisable.

The figures above are CP. The share is multiplied by the total shares to determine the amount.

Question 18

How is severance pay characterized?

Answer 18

Courts are split
Some treat as CP, where the pay recognized labor performed during marriage

Others treat as SP because it replaces future wages

Question 19

For disability payments, what is the characterization approach?

Answer 19

Look to the intent of the payment

• If to replace current earnings: CP
• If to replace future earnings: SP

Question 20

does CP or SP own the disability policy?

Answer 20

whichever pays the premiums owns the policy

Question 21

How is good will defined and calculated at a high level and which part is CP

Answer 21

A business’s good will is the degree to which its reputation is regarded as a quantifiable asset, calculated by payments made in excess of the FMV in an acquisition. Good will is CP to the extent it was earned during the marriage

Question 22

How is a spouse’s degree treated? the actual degree

Answer 22

Actual paper degree is always SP, even if the CP paid for the degree.

Question 23

How are educational expenses treated where CP paid for it?

Answer 23

CP is entitled to reimbursement for educational expenses except in 3 situations
(1) Reduced the need for spousal support of the educated spouse
(2) The other spouse also benefitted from CP funding of education
(3) The community substantially benefitted from the education (presumed after 10 years)

Question 24

How are educational loans treated?

Answer 24

Always the SP of the educated spouse

Question 25

how are bonuses treated?

Answer 25

Use intent rule If intent to reward labor during marriage - CP If intent to provide for future earnings - SP

Question 26

define whole life insurance

Answer 26

Whole life insurance provides lifetime coverage and contains a cash savings component, which the policy owner can draw upon.

Question 27

what is the rule for interest in a whole life insurance policy?

Answer 27

Both CP and SP have an interest in the whole life policy. The CP measure is the amount of CP contributed to the policy divided by the total amount contributed. This share is multiplied by the total cash value. The remainder is SP. Note: The non cash proceeds are determined by whichever estate paid the premium last.

Question 28

Define term life insurance and the rule on characterization

Answer 28

Term life insurance provides coverage for a specific term less than life and does not have a cash savings component. The policy is usually paid annually. The policy belongs to whichever estate paid the LAST premium

Question 29

What is the rule for devising life insurance?

Answer 29

Life insurance is a CP interest. The holder cannot devise the spouse's one-half CP interest without the spouse's consent. Note When life insurance tested, unclear whether term or whole. Analyze both and explain why it is more likely to be one or the other. For example, if the policy is paid annually, it may be more likely to be term insurance.

Question 30

What happens where the community is used to enhance the value of a SP business?

Answer 30

Where the community is used to enhance the value of the SP business, the community has a share in the increase in the business's value.

Question 31

What are the 2 approaches California courts use?

Answer 31

(1) Pereira (2) Van Camp

Question 32

What is the approach for Pereira?

Answer 32

The Pereira approach is used when the primary reason for the increase in the business's value is the spouse's own expertise and skill. Under this approach, the SP is calculated as the original principal value of the business plus (an annual rate of return, usually 10%, against the business) for every year the couple was married while the business was in operation. The remainder is CP.

Question 33

What is the approach for Van Camp?

Answer 33

The Van Camp approach is used where the increase in the value of the business is primarily due to market and industry forces (as opposed to the spouse's own expertise and skill). Under this approach, the CP is calculated by a market salary for the spouse for every year worked at business during the marriage, less all the household expenses paid less all salary taken (also for years married and in business). The remainder is SP. In cases of a premarital where all wages are each spouse's SP, you will not subtract out the salary taken element. You don't need to do the math, just say this expense will not be deducted.

Question 34

Listen to exam tips

Answer 34

iii. Importance of 3 Ways to Terminate MEC 1. Recall: Permanent separation (e.g., separated + files for divorce) ends the MEC, as does divorce, or death of either spouse. iv. Years 1. Recall: The duration of years used is the number of years the business was in operation, and the formula ends when the MEC ends v. Exam Tip 1. Pereira is for personal skills. Pay interest on the SP, the rest if CP. 2. Van Camp is for a valuable company. Look at the value of community labor. The rest is SP. vi. Exam Tip – fact pattern in which one spouse enters marriage with portfolio of stock also uses the approach above. vii. Exam Tip 1. Anytime SP business involved, establish why it is a SP business 2. Do not assume business acquired during marriage is CP 3. After establishing business is SP, address both Pereria and Van Camp. Go through equations and calculations. 4. Finish by explaining which approach the court will likely use and why. viii. Pereira/Van Camp Fact Triggers 1. Business started before marriage 2. Business inherited during marriage 3. Business started with SP funds during marriage 4. Business started during marriage with CP labor—explain why Pereira/Van Camp does not apply

Question 35

When does reverse Pereira or Van Camp apply?

Answer 35

Reverse applies where the SP is used to improve a CP business Here, you do the same equations but you flip the variable you start with. So for Pereira, where you usually start with SP, here, you start with CP. And for Van Camp where you start with CP, here, you start with SP.

Question 36

what issue to mention on every comm prop exam

Answer 36

transmutation

Question 37

Define a premarital agreement

Answer 37

A premarital agreement is an agreement before marriage where the two parties agree to characterize their property in a certain way.

Question 38

4 high level requirements for a valid pre marital agreement?

Answer 38

(1) In writing and signed by both parties; (2) Purpose must not promote divorce; (3) Voluntary; AND (4) Non unconscionable

Question 39

1. (1) In writing, signed by both parties; 2. (2) Must not promote divorce; Then Voluntary - what are the 4 requirements

Answer 39

The party who is challenging the purported agreement is: (1) Represented by independent counsel; (2) At least seven days before signing to review the proposal; (3) If not represented by counsel, was fully informed of terms and effect of document in a language they understand; AND (4) Spouse executed a document provided that she received the information.

Question 40

Define not unconscionable

Answer 40

Fair process in which party receives full disclosure of financial situation of other party Waivers for child support will not be enforced Waivers for spousal support are unenforceable if: - Party not represented by independent counsel or - Terms unconscionable

Question 41

3 ways to defend enforcement of prenup

Answer 41

Laches (unreasonable delay and prejudicial effect) Estoppel (detrimental reliance)

Question 42

Define transmutation

Answer 42

A transmutation is an agreement to change the character of property from SP to CP, from CP to SP, or from one spouse's SP to another spouse's SP. Before 1985, oral transmutations were permissible From 1985 onwards, transmutations are valid if: (1) Written; (2) Signed by the party whose interest is being adversely affected; AND (3) Expressly declares that a change in ownership is being made

Question 43

exception to transmutation requirement?

Answer 43

Gifts of personal nature that are insubstantial in nature

Question 44

rule on extrinsic information related to proving a transmutation

Answer 44

Extrinsic evidence is not permitted to evidence a transmutation (e.g., cannot bring in a will)

Question 45

What is the Married Women's Special Presumption?

Answer 45

For all property titled in a woman's name alone before 1975, the property is presumed to be her SP.

Question 46

What are 2 ways a husband may rebut the Married Women's Special Presumption?

Answer 46

(1) H did not intend to make the gift and had some other reason for putting title in her name (e.g., shielding asset from creditors) (2) W took title in her name without husband's knowledge or consent Note Arises only when: 1. Title taken in W’s name alone before 1975 (property is W’s SP) 2. Title in name of W and H before 1975, but title is not joint, and not as “H&W” or “Mr. & Mrs.” (would be ½ W’s SP, ½ CP) 3. Title in name of W and some third party (including husband) before 1975 (W would be TIC with the third party)

Question 47

What are the four ways to take in joint title?

Answer 47

(1) Joint tenancy with right of survivorship (2) Tenancy in common (3) As CP (4) As CP with a right of survivorship Recall: Joint tenancy: Each spouse owns a one-half interest as SP when alive.

Question 48

what is the rule for assets taken in joint title?

Answer 48

Assets taken in joint title are presumed to be CP.

Question 49

At death, how is property taken in joint title treated?

Answer 49

Upon death, property taken in joint title is presumed CP. Under Lucas, SP has no right to reimbursements for contributions or improvements. Such SP expenditure is seen as a gift to the community.

Question 50

At divorce, how is property taken in joint title treated?

Answer 50

At divorce, property taken in joint title is also presumed CP. However, SP is entitled to reimbursement toward DIP (down payments, improvements, and principal payments on the mortgage). SP is not entitled to reimbursement for insurance, taxes, or interest. (Anti-Lucas)

Question 51

How can these presumptions be rebutted?

Answer 51

(1) Express statement in a deed that the property is SP (2) Written agreement by parties that the property is SP

Question 52

What is the general rule on how to characterize property that is not taken in joint title and where bank accounts are commingled?

Answer 52

Where property is not taken in joint title, the source rule is applied to characterize the property. 2 methods are used - the exhaustion method and the direct tracing method

Question 53

What 2 other rules to mention before getting into exhausation and direct tracing?

Answer 53

Commingled Bank Accounts Family Expenses Presumption

Question 54

Define rule on commingled bank accounts

Answer 54

The commingling of SP and CP into the same bank account does not transform the nature of the property. However, the burden of proof is on the party claiming the property is SP to show that the property was acquired through SP funds.

Question 55

What is the Family Expense Presumption?

Answer 55

Expenditures for family expenses are presumed to have been made by CP. Any SP funds used on such expenses are presumed a gift to the community.

Question 56

Examples of family expenses

Answer 56

Mortgage payment and rent Health and car insurance Food Clothing Medical Utilities Vacations

Question 57

What is the Exhaustion approach?

Answer 57

The proponent of SP must show that at the time the property was purchased, all CP funds were depleted and only SP funds remained to purchase the asset.

Question 58

What is the Direct Tracing approach?

Answer 58

The SP proponent must directly trace a deposit into the account to a subsequent purchase. For example, if Wilma deposited $12,000 into her account, and then purchased the boat for $12,000, the court can trace the purchase to the deposit of separate property.

Question 59

listen to notes

Answer 59

1. If SP proponent fails to trace, the entire commingled account and assets purchased from the account will be treated as CP. 2. If commingled account is jointly titled, entire account presumed CP, but presumption may be overcome by tracing funds to one’s spouses SP.

Question 60

how are gifts treated when they come from one's spouses SP?

Answer 60

Remain that spouse's SP absent a transmutation

Question 61

how are gifts treated when they are funded by CP?

Answer 61

As CP

Question 62

How do you treat CP improvements to SP property (not a business)? This is the Marriage of Moore rule

Answer 62

Rule: Where CP is used to improve a SP asset, the community is entitled to an interest. Under the Marriage of Moore, where CP has contributed to a SP asset, the community is an entitled to a pro rata share in the appreciation of the asset. The share is calculated by taking the total payments from CP toward reducing the principal over the total purchase price. The share is multiplied by the appreciation in the home from marriage to trial (the increase in value). Also, the CP is entitled to reimbursement for any contributions made to DIP (down payments, improvements, and principal payments) but not including interest, taxes, or insurance.

Question 63

What are the 3 situations in which the Marriage of Moore calculation applies?

Answer 63

(1) Installment purchase pre-marriage and CP payments during marriage (2) During marriage, W inherits land and CP mays mortgage (3) H purchases a whole life policy with cash value before marriage and premiums are paid with CP

Question 64

Where CP is used to improve your OWN SP, how is reimbursement treated?

Answer 64

When CP is used to feather one's own nest, the CP is reimbursed for the cost of the improvement or the amount by which the improvement increased the value of the asset, whichever is great. Note: Fixtures are treated as becoming part of the property

Question 65

Where CP is used to improve the other person's SP, how is reimbursement treated?

Answer 65

Split in authority Some courts presume gift Others grant reimbursement to CP

Question 66

Where SP is used to improve the other spouse's SP?

Answer 66

SP is entitled to reimbursement (including for DIP)

Question 67

Where SP is used to improve CP?

Answer 67

Lucas and Anti Lucas At death, SP is not entitled to any reimbursement At divorce, SP entitled to reimbursement

Question 68

Where spouse deeds his SP property into joint title? How is he reimbursed?

Answer 68

The spouse who titles their SP property into joint property is entitled to reimbursement for the FMV of the property at the time it was deeded into joint tenancy.

Question 69

What are the 2 fiduciary duties spouses owe each other?

Answer 69

(1) Duty of Full Disclosure (2) Duty of Good Faith and Fair Dealing

Question 70

Define the Duty of Full Disclosure

Answer 70

A spouse must disclose all material facts pertinent to community assets or debts and provide access to information upon request.

Question 71

Define the Duty of Good Faith and Fair Dealing

Answer 71

The spouse must use the highest good faith and fair dealing with their spouse. The spouse must not gain an advantage over their spouse in a transaction.

Question 72

How do you treat one spouse investing in funds with CP funds where he does so with gross negligence or recklessness?

Answer 72

This is a breach

Question 73

how will the court treat a breach?

Answer 73

Though property might be CP, because a spouse breaches their fiduciary duty to the other spouse, the court may determine that W is entitled to a larger share of CP. Exam Tip – Fact Triggers 1. One spouse sells property without the other spouse’s consent 2. One spouse lies or fails to disclose information to the other spouse 3. Anytime one spouse is acting alone, consider fiduciary duty issues

Question 74

What is the equal management and control rule without the exceptions?

Answer 74

During the marriage, each spouse has equal management and control over the CP. Either spouse may buy, sell, or encumber CP without the other spouse's consent Note: This applies to lifetime control (not testamentary control)

Question 75

What are the 4 exceptions to the equal management and control rule, where spouse's consent is needed?

Answer 75

(1) Sale of real property or lease for greater than one year duration (2) Spouse managing CP business can act alone but must provide notice to other spouse when selling any personal property in CP business (3) Any sale of the CP personal property within the home (e.g., a TV) (spouse can void at anytime during or after marriage and need not return payment to transferee) (4) Any gift of CP

Question 76

For the sale of real property or a lease greater than a year, what happens if a BFP took the property?

Answer 76

One year SoL for other spouse to void transaction

Question 77

If a non BFP took the property?

Answer 77

Transaction can be voided at any time Note on Bank Accounts Bank account in the name of a married person is free from control of any person except a creditor

Question 78

What is the rule regarding encumbering CP interest for payment to divorce attorneys?

Answer 78

Though the general rule is that during a marriage one may not encumber their one half interest in CP, in a divorce proceeding, a spouse can unilaterally encumber their half interest to pay a family law attorney

Question 79

What is the rule on intervivos gifts of CP personal property and whether one can revoke such gifts?

Answer 79

Neither spouse can gift an intervivos gift of CP personal property without the other spouse's consent. - During the donor's lifetime, the non gifting spouse can revoke the gift in its entirety - After the donor dies, the non gifting spouse may recover the one half interest against the donee or the donor's estate

Question 80

What is the rule regarding life insurance beneficiaries?

Answer 80

A spouse must not list a third party beneficiary as receiving the life insurance

Question 81

What kind of savings bonds are subject to preemption where such bonds can be gifted away without CA community property law getting in the way?

Answer 81

U.S. government savings bonds.

Question 82

Who owns the personal credit history?

Answer 82

CP

Question 83

what is the rule for loans?

Answer 83

Loans taken during marriage are presumed CP but also look at primary lender intent a. Who or what was the lender primarily looking to for satisfaction of the debt?

Question 84

When does debt incur for a contract? For a tort? For spousal and child support from prior relationships?

Answer 84

- At time of contract formation - At time of tort - At pre marriage Generally, debt is incurred at the time the obligation arises

Question 85

How are debts incurred when the debt is prior to marriage?

Answer 85

Debts incurred prior to marriage are treated as CP debts. CP first, then SP of debtor spouse. Non debtor spouse's SP cannot be reached. Exception If CP funds from non debtor spouse are not commingled and put into a separate account in her name in which other spouse does not have access, her funds are shielded.

Question 86

How are debts incurred during marriage treated?

Answer 86

Debts incurred during marriage are treated as CP debts. CP first, then SP of debtor spouse. Non debtor spouse's SP cannot be reached unless for necessaries.

Question 87

How are debts treated when they occur after separation and before divorce?

Answer 87

Non debtor spouse is liable for necessaries. So liability for necessaries continues past separation until dissolution

Question 88

How is "during marriage" defined?

Answer 88

During marriage does not include the period where living separate and apart, meaning CP would not be liable for such debts, except for necessaries

Question 89

At divorce, a creditor cannot reach CP awarded to the other spouse unless one of 2 situations

Answer 89

Spouse incurred the debt Was assigned the debt by the court

Question 90

How are debts treated at one's death? What rights do the creditors have?

Answer 90

When property passes through probate, every debt is characterized as CP or SP and then allocated to CP or SP portions of decedent's estate When property does not pass through the probate process, the surviving spouse is personally liable for all debt including CP debt and decedent's SP debts

Question 91

What are the 2 types of debts that may be reimbursed?

Answer 91

(1) CP funded spousal or child support, where other spouse had SP funds available at the time (arising from prior marriages) (2) SP applied toward debts incurred by other spouse for necessaries

Question 92

What happens when a person dies with a will, but their debts exceed the gifts give in the will?

Answer 92

Where the testator's debts exceed the value of his real property, some portion of the decedent's testamentary gifts will be abated. Note: Where H gifted real property to a friend during marriage, the property is not part of the estate and thus is not subject to abatement.

Question 93

At divorce, how are assets distributed?

Answer 93

At divorce, all CP assets and debts are divided 50-50 unless the court finds that the interests of justice require otherwise. However, each spouse must end up with 50% of all CP assets and debts in terms of the total economic value.

Question 94

What are 5 exceptions to the general rule that upon divorce, all CP assets and debts are divided 50-50?

Answer 94

(1) Misappropriation by one spouse (2) Liabilities exceed assets (3) Education debts assigned to educated spouse (4) Tort liabilities assigned to tortfeasor (5) Family home awarded to person with custody of minor children

Question 95

What is the rule for form of title when a spouse dies?

Answer 95

The death of a married person terminates the CP character of any property, but form of title still controls. (e.g., pull title issues out of will analysis).

Question 96

What is the rule for when a spouse dies with a will?

Answer 96

When a spouse dies with a will, the spouse may dispose of his one-half share of the CP and all of his SP. SS keeps her 1/2 CP share.

Question 97

What is the election by the surviving spouse?

Answer 97

Where in a will the decedent spouse gives away more than his share of CP, the surviving spouse can take under the will and forgo her CP rights or take against the will and keep CP rights.

Question 98

How is the surviving spouse treated where the decedent spouse dies intestate?

Answer 98

The surviving spouse receives the decedent spouse's one half share of the CP, and anywhere from 1/3 to a full share of the decedent's SP.

Question 99

Define Quasi Community Property

Answer 99

Quasi community property is property acquired by the couple when they lived outside of California and that would have been community property had the couple been domiciled in CA and acquired the property under the same circumstance.

Question 100

How is QCP treated during the marriage?

Answer 100

During the marriage, with the exception of debt collection, QCP is treated as each spouse's SP. This means the spouse can transfer title to property.

Question 101

How is QCP treated at divorce?

Answer 101

Upon divorce, QCP is treated like CP. Each spouse owns a one-half interest.

Question 102

How is QCP treated upon death?

Answer 102

At death, QCP is treated like CP. However, the decedent cannot acquire an interest in the surviving spouse's QCP.

Question 103

How are creditors rights treated under QCP?

Answer 103

Treated like CP. Creditor can reach QCP to satisfy any debts.

Question 104

iv. Joint Tenancy Fact Pattern

Answer 104

1. In a joint tenancy, each owner holds an undivided interest in the property with a right of survivorship. When one joint tenant dies, the property is freed from their interest. The survivor retains an undivided right, which is no longer subject to the interest of the deceased co-tenant.

Question 105

Define the Illusory Transfer Doctrine

Answer 105

Under the illusory transfer doctrine, where during the marriage a spouse transfers one-half of their QCP interest to a third party without the other spouse's consent, and receives less than substantial consideration, and retains a right (e.g., right of survivorship, power to revoke right to income), upon the decedent's death, the surviving spouse can claw back up to a one-half share of the property. Also, the gift was an intervivos conveyance so is not subject to the probate process. The other half interest of the property is held by the third party. Sample Analysis: H reserved right of survivorship because he gave land to himself and Sid as joint tenants and as a gift. He did not have W’s consent. W can thus compel Sid to restore one-half of the condo to Hank’s estate. Sid keeps the other one-half.

Question 106

How is foreign real property treated at divorce?

Answer 106

Like any other property. Courts have power to distribute all out of state CP or QCP property. 2. Note: If not possible to divide real property, one gets equivalent $ value.

Question 107

How is foreign real property treated at death?

Answer 107

Follow laws of state where property located Protection applies only if non acquiring spouse survives other spouse

Question 108

Define Quasi Marital Property

Answer 108

Quasi marital property is that property held where one or both spouses believe in good faith that they are lawfully married though they are not. The marriage is void or voidable. The QMP property is treated as CP where the putative spouse is entitled to half. Courts are split on whether the non putative spouse is entitled to half of the property. Also, the court might treat all of the property as QMP, so the non putative spouse is estopped from denying the validity of the marriage.

Question 109

For the bad faith spouse in a putative spouse relationship to prevail, what must they show?

Answer 109

That the other party also had bad faith and simply wanted to enjoy the benefits of companionship. They should be estopped from denying the relationship. Conclusion: H and W are putative spouses. The property is classified as QMP.

Question 110

In a fact pattern, where one spouse is cheating, what issue should you raise?

Answer 110

Quasi marital property! Girlfriend might have subjective good faith belief that the guy married her and could be entitled to half of property they acquired together, even if/especially if he was still married to other lady

Question 111

If someone has two spouses, what are the court's two options? Jx split

Answer 111

(1) Divide property equally between all participants, or (2) Divide property between non-guilty participants

Question 112

Note on registered domestic partnerships

Answer 112

i. Domestic partners treated exact same as married persons in CA. ii. Other Jx: CA recognizes domestic partnerships from other jurisdictions if the domestic partnership would be valid by the laws of that jurisdiction.

Question 113

Note on marriages from other jurisdictions

Answer 113

i. Rule: California recognizes marriages from other jurisdictions if the marriage would be valid by the laws of that jurisdiction.

Question 114

How does CA treat common law marriages?

Answer 114

CA does not recognize common law marriages that were started here but does recognize common law marriages that were valid in other states before the couple moved to CA. i. Rule: A lawful marriage requires (1) legal capacity, and (2) formal legal procedures. 1. Void: Bigamy, incest 2. Voidable: Fraud, coercion, sexual incapacity, lack of consent

Question 115

How does CA treat unmarried cohabitants?

Answer 115

Apply contract principles. Contracts must not be based on return of sex services. ii. Analysis: Under the Marvin case, courts may enforce contracts between couples who are not married, so long as they are not expressly based on performance of illicit sexual acts. Here, no express contract. Perhaps implied however, in case of cheating public policy requires contract not be enforced

Question 116

What is the rule for federal preemption?

Answer 116

Under the Supremacy Clause, federal law preempts inconsistent state laws. i. Whenever there is any type of federal asset such as a federal pension, military life insurance, social security benefits, or U.S. savings bonds, address preemption. ii. If uncertain whether the federal asset at issue would be preempted, mention in your response that because it is a federal asset it is possible and identify what the result would be if federal preemption applied and if it didn’t.

Question 117

3 areas that federal preempts CA community law

Answer 117

(1) Federal homestead claims (2) Military life insurance benefits (3) US Savings bonds

Question 118

3 areas that federal does not preempt

Answer 118

(1) Rail road retirement benefits (2) Military retirement benefits (3) Copyrights