Community Property - TESTED IN FEB

Question 1

Intro to EVERY CP essay

Answer 1

California is a community property state. All property acquired or earned during a marriage is considered community property. Property acquired before the marriage or by gift, devise, or bequest is presumed separate property.
[IF RELEVANT] Quasi-community property is property acquired by either spouse that would have been community property if the spouse had been domiciled in California at the time the property was acquired.

At divorce, community assets are divided equally unless a rule or agreement between the spouses requires division otherwise.

Question 2

Community Property

Answer 2

Community property is property earned or acquired during the marriage. There is a presumption that all property acquired during the marriage by either party is community property

Question 3

Termination of the marital economic community

Answer 3

The marital economic community is presumed to end at death, divorce or when there is permanent physical separation and an intent not to resume the marriage.

Question 4

Common law marriage

Answer 4

California does not recognize common law marriage unless it was validly contracted for in another state

Question 5

Rights of nonmarried couple

Answer 5

No rights to property acquired by other person during the relationship. But a court may find an express or implied contract.

Question 6

Putative Spouse doctrine

Answer 6

If a person has a subjective belief that they and the other person are validly married, assets acquired during the marriage are called “ quasi-marital property” and are treated the same as community property upon dissolution

Question 7

Separate property

Answer 7

Separate property is

1) property owned before marriage
2) inheritance given to one party
3) gift given to one party

Any fruits of separate property will remain separate property

Question 8

Tracing

Answer 8

Any fruits of separate property will remain separate property

Question 9

Quasi-community property

Answer 9

Propert acquired by a married couple that lived outside of California while the property was acquired, but that would have been classified as community property if the couple was in California. Quasi-community property is treated as separate property during the marriage, but will be treated as community property at death or divorce.

Upon death, foreign state’s law will control the distribution of real property, but California can make up for inability to award one spouse property by giving other spouse assets of equal value

Question 10

How is community property divided?

Answer 10

50-50 with exceptions

Question 11

What can you devise in will?

Answer 11

1/2 community property & all separate property. If you devise all community property w/o written consent of other spouse, other spouse can set aside gift and acquire their half.

Question 12

Premarital agreement**

Answer 12

Prenup, can divid property any way. Only exception is it cannot limit a party’s obligation to pay child support.
Requirements:
1) in writing (exception if oral agreement is fully performed or promisee has detrimentally relied on oral agreement)
2) voluntary (spouse must receive complete info about other spouse’s property, 7 days btwn receiving agreement and signing and separate attorney UNLESS spouse received full info in writing & signed a separate doc acknowledging receipt of such info and waiving right to attorney)
3) not unconscionable
- if spousal support provision- unconscionable if no rep. by independant counsel or provision is uncons. at time of enforcement)

For other provisions - unconscionable if when executed, 1) fair, reasonable and full disclosure of property or financial obligations of other party, 2) party did not voluntarily and expressly waive in writing, any right to disclosure AND 3) part did not have or could not have had adequate knowledge of the other party’s property or financial circumstances

Question 13

Marital agreement/transmutation**

Answer 13

Agreement made during marriage to alter character of an asset ( SP to CP or CP to SP). No consideration is required.
REQS:
1) Must be in writing by express declaration of spouse who interest is adversely affected. Language must be explicit and controls OR

2) gifts btwn spouses that are of a personal nature + not substantial in value (clothing, jewelry, etc. solely used by one spouse)