Community Property (Final) Flashcards
Commingled accounts - methods to prove community property
Exhaustion method: all CP funds exhausted when property purchased
Direct tracing: sufficient SP funds at the time of purchase and intent to use SP funds
Premarital Agreements
- Effective upon marriage
- In writing/signed by both
- Can’t waive child support
- Voluntary/Not unconscionable
- Need disclosure of financial obligations
Premarital obligations deemed involuntary unless:
- Independent counsel or waived in writing
- 7 days before signing
- Terms in writing in proficient language
- No duress, fraud, undue influence
- Any other factor courts deems relevant
- Not unconscionable
Title Presumptions
SP used for Jointly titled property:
Death & pre-1984: jointly held property is CP- no reimbursement
Divorce, 1984-1987: joint tenant title held by H & W is CP; reimbursement for Down payment, Improvements; Principal (DIP)
Divorce, 1987 on: ANY jointly held title by H&W if CP; Reimbursement for DIP.
Transmutations
Pre-1985: oral and inferred OK
Post-1985 need:
-Writing
-Express declaration
-Adversely affected spouse
Exception
-Gifts of insubstantial nature or personal
-Not effective as to 3rd party without notice unless recorded
-Statements in will not admissible as evidence
Pereira
Favors CP
-Use if spouse is reason for growth
SP= initial SP + (initial SPRRR# yrs); CP= rest
Van Camp
favors SP
-Use if character is business is reason for growth
CP= (value of spouse services * # yrs) - actual compensation - family expenses; SP=rest
CP used to improve other spouses SP
gift presumed under majority of jurisdictions
CP used to improve your own SP
CP reimbursed greater of amount spent on improvement or increase in value
Distribution of assets at divorce/death
Divorce: CP split equally
Death:
-No will: all CP to spouse, 1/2-1/3 SP to spouse, depending on survivors
-Will: Can devise all SP & 1/2 of CP and QCP (but not SCP titled in survivor’s name)
