Community Property Short List Flashcards
Memorize Approach/Understand Concepts/Memorize Issues
What is the Community Property Approach (outer)
INTRO, RELATIONSHIP, CONDUCT, PRESUMPTION LIABILITY, DISTRIBUTION
Think Cheating/Lying Spouse, really upset, finding out spouse, left them with nothing
“I Really Cant! People Lie @ Death/Divorce”
Community Property Approach (Inner)?
INTRO - Preamble
RELATIONSHIP - Type, Prenup, Fiduciary Duties
CONDUCT - SIP THAT Good Cognac
PRESUMPTIONS - Joint TItle, Credit Acquisition, Education, PI Award
LIABILITIES - Torts v. 3P’s, Debts, Child Support/Alimnony
DISTRIBUTION - Death/Divorce
What is a Community Property State?
Property acquired during marriage is presumed community property (CP). Property acquired before marriage is separate property (SP), along with gifts, devises, and inheritances during marriage.
What is Quasi-Community Property?
Property acquired in a non-community property state is treated as CP if it would be classified as CP had it been acquired while domiciled in California.
What is the Marital Economic Community?
The legal ‘community’ of married people until death or separation.
How is property acquired during permanent separation classified?
Property acquired during permanent separation (with no intent to reconcile) is considered separate property (SP).
What are the requirements for a valid Prenuptial Agreement?
- Voluntary, 2. Independent counsel, 3. 7 days to review, 4. Full advice.
What is the Fiduciary Duty of Trust & Confidence?
Written consent is required for disposing of community property (CP), unless insubstantial.
What is actionable gross negligence or reckless destruction of property?
It is actionable within 3 years.
What are the requirements for a Valid Marriage?
Legal capacity (18+), and performance of legal procedure of the state.
What is a Putative Spouse?
A person with a reasonable/good faith belief that their marriage is valid, leading to quasi-marital property or CP.
What is an Unmarried Cohabitant?
Individuals who can contract with each other to hold as CP, but cannot have sexual contracts.
What is Commingling?
When a separate property (SP) owner has the burden to trace their property either directly or by exhaustion.
What is Direct tracing in Commingling?
The proponent of SP uses accurate records to trace.
What is Exhaustion tracing in Commingling?
The proponent of SP shows that at the time of purchase, it was impossible to use CP in the account.
How is property improvement classified?
- CP improving own SP = CP reimbursed for cost of improvement or increase in value of SP. 2. CP improving other SP = presumed gift or reimbursement. 3. SP improving CP = SP has right of reimbursement. 4. SP improving other’s SP = SP has right of reimbursement.
What does Transmute mean?
To change the character of an asset, requiring (1) writing, (2) express declaration, (3) consent.
What are the requirements for a Gift?
- Donative intent and 2. Delivery of the gift.
What is the 10 Year Rule regarding education?
After 10 years, there is no reimbursement for education, as the community is presumed to have benefited.
How do courts decide who gets appreciation in value to separate property business?
Courts have disretion to use either the Pereira or Van Camp Formula to determine apportionment of increase in SP business value.
What is the classification of Personal Injury Awards?
Is CP if received during marriage, but at divorce is SP unless commingled.
What is the Pereira formula?
The court may use Pereira if they believes community efforts is the greater factor in appreciation of buinsess.
SP owner will get their (a) initial investment and (b) reasonable rate of return.
Community gets rest of the appreciation in value.
How are Debts classified in relation to CP?
Debts are considered CP even if the obligation occurs before marriage, but after divorce, the obligation will come from the debtor spouse’s own SP first.
How is credit acquisition classified during marriage?
The presumption is credit acquistion is CP. However intent of lender may rebut that presumption if primary reliance on loan was spouses separate property.
