Community property questions Flashcards
A husband seeks to overcome the community property presumption regarding a beach house he acquired during the marriage. The beach house cost $100,000, and the husband can prove that he paid $50,000 out of separate funds. If the house is sold for $200,000 at the time of divorce, what will the husband’s separate estate receive?
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A
$50,000.
B
$100,000.
C
$200,000.
D
$75,000.
Because the husband’s separate estate has a 50% interest, the estate receives 50% of the sale price, or $100,000. The husband is able to show that he paid 50% of the purchase price from separate property funds, therefore, he has a 50% ownership interest in the house (so long as title to the house or other evidence does not indicate that the parties agreed to some other form of ownership). The community estate possesses the remaining 50% interest by virtue of the presumption that property acquired during the marriage is community property
If registered domestic partners A and B take title to property as “community property with a right of survivorship,” which one of the following statements is true?
A
The property will be treated as separate property as long as A and B are alive.
B
A and B have not successfully taken this title because they are not a married couple.
C
A and B cannot terminate the right of survivorship after having taken this form of title.
D
The property will be treated differently from community property upon one partner’s death.
t is only at death that community property with a right of survivorship will be treated differently from community property. During the ongoing marriage (or domestic partnership) and at divorce, the property is treated as community property. Prior to the death of either partner, the right of survivorship may be terminated in the same manner as a joint tenancy may be severed. Thus, A and B can subsequently terminate the right of survivorship after having taken this form of title. Married couples and registered domestic partners may take title as “community property with a right of survivorship” by expressly declaring this form of title in a document of transfer.
Contributions to the acquisition of community property, which are reimbursed to the separate property contributor, include the application of separate property toward:
Contributions to the acquisition of community property include the application of separate property to pay the purchase price or to reduce the principal of a loan used to finance the purchase, but do not include interest payments on the loan or payments made for maintenance, insurance, or taxation of the property.
Which of the following is a presumption applied to commingled accounts?
Available community funds are presumed to have been used for family expenses (and separate funds are deemed to have been used for family expenses only when community funds are exhausted). When separate property funds are used to pay family expenses, a gift to the community is presumed. These separate expenditures are not reimbursable in the absence of a reimbursement agreement. It is not presumed that spousal gifts were paid from separate property, and it is not presumed that all separate property was transmuted. To the contrary, the owner of separate funds may trace the funds and establish a separate property interest.
Under what circumstances will Van Camp accounting result in the greatest separate property award for a managing spouse?
Van Camp accounting will yield the highest result for the managing spouse’s estate when the prevailing market rate for the manager’s services is low and the amount of family expenses paid from the business’s income is high. The manager’s services are valued at the going market salary for such services. Family expenses that were paid from the business earnings are then subtracted from this figure and the remainder, if any, represents the community property portion of the business. The rest of the property is the managing spouse’s separate property. A low market value minus high family expenses will leave the smallest community property remainder and accordingly the largest separate property award.
A husband and wife take out a loan, using the proceeds to pay off a car that the wife purchased before marriage. Which parties have an ownership interest in the car?
A
The wife only.
B
The community only.
C
The wife and the community.
D
The wife, husband, and the community.
Both the wife and the community have an ownership interest in the car. The community becomes a proportional owner of otherwise separate property when the spouses take out a new loan and use its proceeds to pay off the original separate property purchase debt. The new loan is a liability of the community, for which each spouse is equally responsible. The husband does not have a separate property interest in the car.
If a husband uses community funds to improve his separately owned beach home, which of the following is true?
A
The community funds are presumed to be a gift to the husband and the property remains separate.
B
The community will become the sole owner of the property if the husband used the funds without his spouse’s permission.
C
The community has a proportional ownership in the property and the husband retains separate interest.
D
The community has no ownership in the property but will be reimbursed for the improvement.
Community funds used for improvement to separate realty are not deemed to purchase an ownership interest. Rather, the community is entitled to reimbursement of (i) the cost of the improvement; or (ii) the amount by which the improvement increases the value of the realty, whichever is greater. The community funds are not presumed to be a gift to the husband because he cannot gift himself his spouse’s interest in community property. The community does not become sole owner of the property by virtue of community funded improvements, regardless of the possibility of a nonconsenting spouse.
The divorce court must divide the community estate equally. Which of the following is NOT a basis for the court to deviate from this rule?
A
The spouses agree otherwise in writing.
B
The spouses agree otherwise by oral stipulation in open court.
C
The court’s good faith belief that one party is more deserving.
D
Statutory divorce provisions allowing exceptions.
The court’s good faith belief that one party is more deserving does not suffice as a basis for deviation from equal division. The court must divide the community estate equally unless the spouses agree otherwise in writing or by oral stipulation in open court. Additionally, statutory divorce provisions allow exceptions to the equal division requirement.
Death penalty excessive?
An acquaintance asked the defendant to give him a lift downtown because he did not have bus fare. While riding on the defendant’s motorcycle, the acquaintance asked to stop at a convenience store to get a bottle of wine, showing the defendant a tire iron in his backpack that he was going to use. The defendant nodded in acknowledgment of what the acquaintance was planning to do. The defendant stopped at the store and waited in the parking lot while the acquaintance went in. He demanded money from the clerk, brandishing the tire iron. The clerk tried to grab a gun under the counter while he was filling a bag with money, and a struggle ensued. The gun discharged, killing the clerk. The defendant heard the gunshot and raced off, but was eventually apprehended.
The jurisdiction’s criminal code provides that a death caused during the commission of certain felonies, including robbery, is first degree felony murder, for which the death penalty is permitted. The code also permits cumulative penalties for first degree felony murder and for the underlying felony. The defendant was charged and convicted of both robbery and felony murder. After appropriate consideration of all relevant circumstances, the jury imposed the death penalty. On appeal, the defendant challenged both the convictions and the sentence.
Assuming that the above facts were properly admitted into evidence, how should the appellate court rule?
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The defendant can be found guilty of robbery and felony murder, but the death penalty cannot be imposed. The defendant can be found guilty of robbery as an accomplice. The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed. [Enmund v. Florida (1982)] Here, because the defendant’s involvement in the crime was only to provide transportation, it cannot be said that he participated in such a major way that he acted with reckless indifference to human life; hence, the death penalty cannot constitutionally be imposed against him
A buyer for a chain of shoe stores ordered 1,000 pairs of shoes from a shoe manufacturer. The shoes cost $50 per pair, so the total contract price was $50,000. It happened that the manufacturer owed $50,000 to a trucking company. The manufacturer assigned, in writing, “all proceeds from the contract with the buyer” to the trucking company. The manufacturer notified the buyer that he had assigned the proceeds of the contract to the trucking company and then shipped the 1,000 pairs of shoes to the buyer. Upon receipt of the shoes, the buyer discovered that 10% of the shoes were defective. He sent a check for 90% of the contract price ($45,000) to the manufacturer, who deposited the check. Shortly thereafter, the manufacturer closed down its business and disappeared without a trace. The trucking company, meanwhile, demanded payment from the buyer, to no avail.
If the trucking company sues the buyer for the $45,000 that the buyer paid on the contract, will the trucking company prevail?
A Yes, because the buyer had notice from the manufacturer that the contract had been assigned to the trucking company.
B No, because the manufacturer wrongfully took the money that was assigned to the trucking company and is solely liable to the trucking company.
C No, because the buyer fulfilled his obligations under the contract by paying the manufacturer.
D No, because the trucking company could not have performed the other side of the contract by furnishing the shoes.
The trucking company will be able to recover the $45,000 from the buyer because the buyer had notice of the assignment. Most contract rights may be assigned, and the right assigned here (to receive money) falls within the general rule. Once the assignment is effective, the assignee (the trucking company) becomes the real party in interest, and he alone is entitled to performance under the contract. (The assignor has been replaced by the assignee.) Once the obligor (the buyer) has knowledge of the assignment, he is bound to render performance to the assignee. Here, the assignment was effective as soon as the assignor (the manufacturer) manifested his intent that the right should be assigned (i.e., in his written assignment to the trucking company). The buyer was given notice of the assignment and, thus, was bound to pay the trucking company. The buyer breached his duty by paying the manufacturer instead of the trucking company. Thus, the trucking company may recover from the buyer for his failure to perform.
Bit of an odd question…
A driver was driving his car negligently along a mountain road. He lost control of his car and careened over the side of a cliff. A jogger saw the driver’s car go off the cliff and stopped to see if he could help. The jogger started to climb down the cliff to render aid to the driver. In doing so, the jogger slipped and broke his leg. The jogger sued the driver to recover damages for his broken leg.
Regarding any defenses the driver might raise, which of the following statements is correct?
A A rescuer acts at his own peril.
B The excitement of the accident and the speedy response of the rescuer would be considered in a case such as this.
C Assumption of the risk cannot be invoked against rescuers.
D The driver would not have a valid defense.
All of the circumstances will be considered when evaluating the conduct of the rescuer, including the excitement of the accident and the speedy response of the rescuer. A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct. (D) is incorrect; the driver would have a defense if he could demonstrate that the rescuer’s actions were reckless.
Congress enacted legislation intended to protect children from unsafe car seats. The act established a commission to supervise the manufacturing and sale of car seats, and empowered the commission to promulgate car seat safety regulations. The commission members were also required to investigate safe and sound methods of installing child car seats. The commission’s chairperson was designated as an Undersecretary of Health and Safety; the President appointed two commissioners from child safety groups; and the three major car seat manufacturers chose one commissioner each, who were then appointed by Congress to the commission.
For its violation of the commission’s rules with regard to car seat manufacturing, a car seat manufacturer was fined $5,000, to be paid immediately without a trial on the merits. The manufacturer files suit in the federal court to enjoin the commission’s enforcement of this rule.
Which of these is the manufacturer’s best argument in support of its contention that the rule was illegal?
A Regulations concerning criminal conduct cannot be made by agency rules, but must be made by federal statute.
B The appointment of the commissioners was illegal; therefore, the rules promulgated by the commission are invalid.
C Because the fine was potentially $5,000 for violation of the rule, the manufacturer had a right to a trial by jury.
D The presumptive fine violated the manufacturer’s rights of equal protection as guaranteed by the Fourteenth Amendment.
The appointment of the commissioners was illegal. The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers. A duly appointed commission does have the power to make rules and regulations governing the subject matter for which it is appointed. Those rules are not “criminal” statutes in this case. Thus, (A) is wrong. (C) is wrong because Congress may establish new public rights and actions that may be adjudicated by agencies, without juries. (D) is wrong because there is no actionable discrimination.
A plaintiff sued a defendant over a claimed debt. At the trial, the plaintiff established the existence of the debt and testified that he never received payment. In response, the defendant presents evidence sufficient to establish that she took her check to the post office and sent it to the plaintiff’s proper address by certified mail. The defendant offers a certified mail receipt with an illegible signature, which she claims is the plaintiff’s signature. The defendant also presents evidence that her basement flooded on March 28, and she claims that she cannot produce a canceled check because her box of canceled checks was destroyed from the water damage. Evidence is also presented that, due to a computer glitch, the defendant’s bank cannot reproduce her checking account records for the months of February and March.
After the defendant’s testimony, which of the following is correct?
A The burden of persuasion and the burden of going forward with the evidence are on the plaintiff.
B The burden of persuasion is on the plaintiff, but he has no burden of going forward with the evidence.
C The plaintiff has satisfied his burden of persuasion, but he has a burden of going forward with the evidence.
D The plaintiff has satisfied both his burden of persuasion and his burden of going forward with the evidence.
The burden of persuasion and the burden of going forward with the evidence are on the plaintiff because the defendant’s testimony raises a rebuttable presumption that the check had been delivered in the mail.
The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose.
The burden of persuasion does not shift from party to party during the course of a trial. Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives.
The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. Here, when the plaintiff made out a prima facie case of the defendant’s debt, the burden of going forward with the evidence shifted to the defendant.
The defendant met this burden through the use of a presumption. Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption. The defendant’s evidence regarding the proper posting of the check raises a rebuttable presumption that the check was delivered to the plaintiff because a letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. Therefore, the burden of going forward with the evidence has shifted back again to the plaintiff, who must now produce evidence to rebut the presumption (i.e., evidence that he did not receive the check).
(B) is incorrect because, as discussed above, the defendant’s testimony raised a rebuttable presumption that the check was delivered in the mail, which shifted the burden of going forward with the evidence to the plaintiff. The fact that the plaintiff met his burden of going forward with the evidence of the debt once, when he made out his prima facie case, does not mean the burden cannot shift back to him.
(C) is incorrect because the plaintiff has not satisfied his burden of persuasion. As discussed above, the burden of persuasion does not shift from party to party and is only a crucial factor when all the evidence is in. This burden is satisfied when the jury finds a party has been more persuasive in arguing his side of the issue than the other party. Because the defendant’s testimony raises a rebuttable presumption that the check was delivered to the plaintiff, the plaintiff’s burden of persuasion cannot be met until he offers evidence to prove that the check was not received (a necessary element of his case).
A brother and a sister each hold an undivided one-half interest in a tract of land. By the terms of their agreement, each has the right to possess all portions of the property and neither has the right to exclusive possession of any part. The brother wrongfully ousts the sister from the property.
What can the sister recover in an action against the brother?
If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, the ousted co-tenant is entitled to receive her share of the fair rental value of the property for the time she was wrongfully deprived of possession. The sister was wrongfully ousted and therefore, as one of two co-tenants with the right to possess all portions of the property, she would be entitled to one-half of the fair rental value of the property during the period when she was ousted. (A) is incorrect because the sister is entitled only to her share (i.e., one-half) of the fair rental value.
Can you put your waivable defense in an answer when there was no pre-answer motion?
YES. The court should grant the motion. Objections to venue may be raised in a defendant’s answer if the defendant did not assert a Rule 12(b) pre-answer motion, as is the case here. Venue here is improper because (i) none of the events giving rise to the claim occurred in the Southern District of State A, and (ii) all defendants do not reside in State A.
