Conduct (by the parties that changes the character of the property) Flashcards
Separation
- All earnings after permanent separation are SP:
1. No intent to reconcile
2. Physical separation
3. Communication to spouse of intent
-All earnings during temporary separation are CP
Transmutation - Pre-Marital Agreements: Elements
-Signed
-Writing (S of F)
Exceptions: full performance, estoppel
-No consideration other than marriage required
Pre-Marital Agreement - Defense:
Voluntary
Must be executed voluntarily:
- represented by independent legal counsel at signing, or advised and expressly waived in separate writing; &
- 7-day waiting period before signing (after advised to seek counsel); &
- if unrepresented, fully informed of terms, acknowledged in SEPARATE writing; &
- no duress, fraud, undue influence, or incapacity
Pre-Marital Agreement - Defense:
Unconscionable
Unconscionable when executed (matter of law) AND party against whom it is enforced:
- before execution was not given full, fair, and reasonable financial disclosure (did not have adequate knowledge of other’s finances); AND
- before execution did not voluntarily and expressly waive right to disclosure
Pre-Marital Agreement - Defense:
Violates Public Policy
- No child support; OR
- Limitations on spousal support if 1) not rep. by independent legal counsel at signing, or 2) unconscionable at enforcement (look to wealth, education, self-sufficiency of both, and whether both waived); OR
- Agreement encourages divorce
Transmutation: Marital
GR: Spouses may transmute property to each other without consideration
- Prior to 1985: No formal agreements were enforced. Oral agreements proved by conduct generally prevailed.
- After 1985: Agreements must be in writing by express declaration (writing must expressly state that characterization of property is being changed)
Transmutation: Gifts
Writing required for gifts as of July ‘87, unless:
- of a personal nature; AND
- not substantial in value given the marriage
Commingling
GR: Funds presumed CP if source cannot be identified.
Trace:
-Direct: must show had SP funds AND intended to use SP funds
-Family Expenses: all CP funds exhausted. Use if SP spouse, through no fault, cannot directly trace
Contribution and Improvements: Lucas
- SP funds toward purchase or improvement of joint-titled property
- Old rule (Lucas): SP funds presumed gift absent agreement
- Anti-Lucas Leg: SP entitled to reimbursement of principal $ for $, absent agreement to the contrary
NOTE: At death, does not apply, JT controls.
Contribution and Improvements: Moore
- Residence purchased before marriage and title taken in purchasing spouse’s name alone, then CP funds used to pay down the mortgage.
- Moore: Community entitled to a pro rata share of the appreciation PLUS its contribution
Pereira
- SP business appreciates during existence of community
- CP time and skill is greater factor in appreciation
- SP gets a fair rate of return (10%) on original investment times number of years married PLUS original investment
- CP gets everything else
Van Camp
- SP business appreciates during existence of community
- Business or economic factors produce the profits
- CP gets salary for reasonable value of services of owner spouse
- SP gets everything else
Reverse Pereira/Van Camp
After permanent separation but before dissolution; CP business managed by one of the spouses after permanent separation appreciates. Apply BOTH
Reverse Pereira
- Time and skill of managing spouse greater factor in appreciation
- CP gets a fair rate of return on investment times years PLUS original investment
- Managing spouse gets remainder
Reverse Van Camp
- Economic conditions are the greater factor in appreciation
- SP gets salary for reasonable value of services times years
- CP gets the rest
