CP Flashcards
What is needed to overcome presumption of CP in marital community?
PRESUMPTIONS: All CP is presumed not transmuted.
strong, satisfactory, clear & convincing, clear & cogent evidence (per AZ ) that comm. intended to make gift to SP.
Burden of proof on party challenging presumption (Porter v Porter).
When in doubt, pick result that maximizes the community.
how long does character of property last?
until changed by agreement of the parties or operation of law
what is separate property?
- owned by either spouse before marriage (unless transmuted or irremediably commingled)
- acquired by one spouse by (non-remunerative) gift, devise or descent
- increase, rents, issues, and profits of SP,(with some exceptions on profits etc. partially due to efforts of one or both spouses during marriage)
- property acquired by either subsequent to service of petition of dissolution that leads to divorce
what is community property?
anything acquired by either or both during marriage, giving both complete management and control and an undivided equal interest in the whole, which is fully vested.
Wages or salary earned by either or both is CP
(recall onerous vs lucrative title)
TITLE: If acquired during marriage and held in both names (in some form)
Presume CP. This is a strong presumption, regardless of the source of the funds. .
However, presumption can be overcome if one claims SP and can [1) trace funds C&C to SP ] and 2) prove that both spouses understood it was SP despite the names on title, .
Title in joint tenancy:
If mrrg ends in divorce, same as CP
If ends in death, courts usually treated as JTWRS and 100% reverts to survivor
Note: different tax treatment CP gets stepped-up valuation after death but JTWRS does not
If issue is creditors, murky. But JTWRS in Az allows creditors to go after non-debtor portion
*SP contributions are entitled to reimbursement
What happens If CP is used for SP purposes,?
asset remains SP but community entitled to reimbursement (see valuation issues)
What happens If SP is used for CP purposes,?
No reimbursement unless C&CE that community intent was to reimburse. Usual presumption is that SP was a gift to the community and asset transmuted.
SP used for an SP purpose?
Remains SP.
How does family expense presumption operate?
When SP & CP present, CP is presumed used for family expenses.
If no CP available, SP is used and transmuted to CP. No reimbursement.
An SP proponent would want tracing to show that there was no CP available at time of acquisition of a disputed asset but that there was SP. therefore asset is SP
Gifts to one spouse during marriage?
If remuneratory = CP. If effort by one spouse connected with gift.
If transfer not connected with toil, may be SP. Les evidence required to prove transfer within family is a gift to one spouse than a transfer from 3rd party.
Another clue can be if value of gift far exceeds worth of work done
Gifts by one spouse to other spouse during marriage?
Not usually. There must be donative intent, delivery, and irrevocable title on delivery. Easier to prove was gift if tied to a particular event or occasion.
What is Pereira?
Manner of calculating amt of increase in value of SP asset (when issue is to reimburse comm) that assigns rate of return to the original SP investment. The return plus the original investment are the SP. If there is anything over that amount, it is CP. In some cases (CA and Rueschenberg) there was also a special rate of return on business ascribed to market conditions,which went to separate prop and then balance was considered CP due to efforts of the community.
What is Van Camp?
Manner of calculating amt of increase in value of SP asset (when issue is to reimburse comm) that looks at compensation for the work/effort of community. If any salary actually was paid, it was CP and has to be deducted from the SP increase.
That numbers is the CP. The balance is SP.
overriding presumption in VK and P?
end result must be equitable and achieve substantial justice
