Community Property Definitions

Question 1

Putative Marriage

Answer 1

Exists where one or both spouses believe in good faith that they are validly married, even though in fact they are not.

Question 2

Putative Spouse

Answer 2

The innocent party or parties to a putative marriage.

Question 3

Quasi-Marital Property

Answer 3

Property that would have been community property or quasi-community property.

Question 4

Separate Property

Answer 4

All property owned before marriage or acquired during marriage by gift, bequest, devise or descent, together with the rents, issues, and profits thereof.

Question 5

Community Property

Answer 5

All property, real or personal, wherever situation, acquired by a married person during marriage while domiciled in Ca.

Question 6

Quasi-Community Property

Answer 6

All property acquired by either spouse while domiciled outside California which would have been community property if the spouse who acquired the property had been domiciled in California at the time of acquisition.

Question 7

Quasi-Marital Property

Answer 7

All property acquired during a void or voidable marriage, in which one or both parties has the status o fa putative spouse, which would have been community property or quasi-community property if the marriage had not been void or voidable.

Question 8

Earnings/Accumulation after separation

Answer 8

Separate property if no intent to reconcile.

Question 9

Exchange Rule

Answer 9

A change in form does not alter character of property.

Question 10

Proper classification of loan proceeds

Answer 10

Sole intent of the lender

Question 11

Conduct may of the parties may affect the classification of property (SIP That Good Cognac)

Answer 11

• Separation: Do parties intend to reconcile?
• Improvements: Are the parties entitled to reimbursement?
• Pereira/Van Camp: Applicable to separate property business
• Transmutation Doctrine
• Gifts
• Commingled Accounts; Tracing Principal

Question 12

Five situations where funds are used to improve property

Answer 12

1. C/P used to improve other spouses S/P.
   - Rebuttal presumption of gift.
2. C/P used to improve own S/P
   - Community entitled to reimbursement or pro-rata share of increase in value.
3. C/P funds used to preserve own S/P
   - Community entitled to reimbursement
4. S/P used to benefit community property
   - Rebuttal presumption of a gift.
5. S/P used to benefit other spouse’s S/P
   - Reimbursement unless transmutation or written waiver.

Question 13

Pereira approach

Answer 13

Applies when community time and skill was the greater factor in the increase value. This method allocates the original S/P investment plus a fair rate of return to the S/P. Any residual value is C/P.

Question 14

Van Camp

Answer 14

Applies whenever community time and skill was not the greater factor in the increase in value. This method provides that the C/P labor will be paid the reasonable value of his services to the business less what he has already been paid as salary. This value then will be C/P while the S/P will receive the residual.

Question 15

Reverse Pereira

Answer 15

Applies when there is a C/P business to which a married person contributes time and skills after separation. Applies when married person’s time and skill was the greater factor of increased value in the business. It gives the C/P a fair rate of return on the C/P capital investment and gives the residual to the S/P.

Question 16

Reverse Van Camp

Answer 16

Applies when a C/P business which a married person contributes time and skill after separation but which the greater factor of increased value was not the time and skill of the spouse. The S/P receives the reasonable value of their services while the balance is allocated to C/P.

Question 17

Transmutation Doctrine

Answer 17

Either before or during marriage, each spouse, by written agreement, may change the status of any or all of their personal or real property presently owned or thereafter acquired. Effective January 1985, agreements must be in writing.

Question 18

Gifts

Answer 18

Gifts between spouses must be in writing if the gift consists of a substantial when considering the economic circumstances of the marriage.

Question 19

Two methods to tracing commingled funds

Answer 19

1. Direct Method: S/P spouse may show that there was sufficient S/P funds to purchase the S/P property.
2. Exhaustion Method: S/P spouse may show that at the time he purchased the asset, the community funds had been exhausted.

Question 20

Omitted Spouse Doctrine

Answer 20

If the marriage occurs after the execution of the last of the decedent’s testamentary instruments, and teh survigving spouse is not provided for, the spouse will take the up to one half of the decedent’s share of the community property and quasi-community property and surviving spouse’s interstate share of the decedent’s separate property.