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CP Flashcards

1
Q

Opening Paragraph

A

California CP state
CP all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state
Currently live in California with concurrent intent to remain.
SP all property acquired by a person prior to marriage, by gift, bequest, devise, or descent
From the issues, rents and profits and may be sold, conveyed, or encumbered without consent of other spouse.
QCP
Acquire property in non-CP state then come to California and would have been CP if domiciled in CA at acquisition
Presumption may be rebutted:
Tracing
Title
Transmutation

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2
Q

Permanent Separation Req

A

Intent

Conduct evidencing

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3
Q

Perm Sep Intent

A

Living different house (not now)

Expressly stated

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4
Q

Perm Sep Conduct

A

No longer having sex and

Not keeping up appearances of marriage

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5
Q

Premarital Agreement before 1985

A

An oral agreement valid if fully performed or estoppel

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6
Q

Premarital Agreement after 1984

A

Everything but child support
Limited spousal support

Written and Signed by Parties
Must Be Given 7 Days Before the Wedding
Able to go to your own lawyer

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7
Q

Defenses to Premarital Agreements

A

Involuntary

Unconscionable i.e. not all info

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8
Q

Steps to CP

A

SPAD

Source
Presumption
Action
Disposition

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9
Q

CP Anti-Lucas

A

If SP and CP funds used
Presumed CP with right to reimbursement
Rebutted by express intent as SP

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10
Q

CP

A

CP all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state

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11
Q

SP

A

SP all property acquired by a person prior to marriage, by gift, bequest, devise, or descent
From the issues, rents and profits and may be sold, conveyed, or encumbered without consent of other spouse.

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12
Q

QCP

A

Acquire property in non-CP state then come to California and would have been CP if domiciled in CA at acquisition

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13
Q

CP Valid Marriage

A

Between two single people
18 years or older
Not related closer than first cousins
Ceremony licensed, witnessed, and registered

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14
Q

Underage Marriage

A

If one party underage

Need court order and Parental consent to marry

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15
Q

Putative Spouse

A 
Innocent participant 
Legal infirmity
If property acquired during
Parties have QMP
Estate is split equally
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16
Q

Domestic Partnership

A

Intimate and committed relationship of same sex or one partner is over 62 who
Registered as domestic partners

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17
Q

CL Marriage

A

Abolished in CA
But recognize valid CL
Created in another state

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18
Q

QCP Trigger

A

Only triggered at death of titled spouse or at divorce

If non-titled spouse dies only has rights if other state gives them

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19
Q

SP Unmarried Cohabitants

A 
Distribution of property 
Acquired during a non-marital relationship
Governed by k principles and not CP
If cohabitants later marry
CP law apply after
Express/Implied K
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20
Q

Unmarried Cohab K

A

K will be enforced unless based upon sexual services

Can be implied based conduct

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21
Q

Presumption Child/Spousal Support Debt

A

Shall be treated as debt incurred before marriage

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22
Q

Presumption Personal Injury

A

During marriage by 3rd party

Presumed CP

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23
Q

Presumption Injury by Spouse

A

If caused by the other spouse

Damages presumed SP

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24
Q

Presumption Commingling Bank

A

Even if funds all SP

Jointly titled account presumed CP

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25
Presumption Pension/Retirement
CP for portion earned during marriage
26
Time Rule Pension/Retirement
Calculated by time employed during marriage divided by total time employed multiplied against pension payment
27
Presumption Prof Degree/Education
Presumed SP
28
CP Debt Presumption
Community liable for debt Incurred by either spouse Before or during marriage
29
Separate Earnings Presumption
Earnings of spouse not liable for debt incurred by the spouse before marriage If kept separate and spouse has no right of withdrawal
30
QCP Presumption
CP
31
SP Debt Presumption
Liable for own SP debt but not liable for other spouse’s SP debt
32
Necessaries before separation
CP and SP liable for debt incurred For necessities of life (same economic and social position)
33
Necessaries after separation
CP and SP is liable for debt incurred | For common necessaries of life (food, healthcare, transgender boobies)
34
Presumption Personal Injury or Death
SP not liable for other spouse’s SP liability of injury or death Party acting for community Paid with CP first, then SP of tortfeasor Party not acting for community, paid with SP of tortfeasor first, then CP
35
Presumption Disability benefits/workers comp
Presumed to be whatever they replace
36
3 Actions
Title Tracing Transmutation
37
CP Title
May he held in one name alone or in form of joint ownership such as JT, CP, CP with right of survivorship or tenants in common
38
Married Womens Special Presumption
Before 1975, any property acquired by married woman in her name alone Presumed to be her SP
39
Title after 1975 but prior to 1985
Title taken as JT or CP is presumed CP Title alone does not rebut the presumption but could be rebutted by oral transmutation or evidence of an agreement or understanding to the contrary
40
Title Post 1984
Title alone does not determine character unless acquired jointly
41
Title Presumption
JT CP CP with right of survivorship TC Presumed CP and can only be rebutted by transmutation
42
2581 statement in deed
If there is a clear statement in the deed or other documentary evidence of title, by which the property is acquired that the property is SP then this can overcome a CP presumption
43
Title Right to Management and Control
Each party has right to manage and control CP
44
CP business right to management and control
Spouse who runs CP business only required to give other spouse notice
45
Bank Account right to management and control
Name of only one spouse | Controlled and managed by that spouse
46
Transmutation prior to 1985
Oral transmutations were allowed and treated as gift of a half interest property
47
Transmutation post 1984
Writing Expressed Declaration: deed meets Signed by Spouse Giving Up Interest
48
Exceptions to Transmutation for Gifts
Gifts of personal nature | If used solely or primarily by the spouse to whom the gift was made and not substantial in value
49
Post Marital Agreement before 1985
Orally or written
50
Post Marital Agreement after 1984
Written Signed by spouse whose interest is adversely affected Specifically State CP is SP or SP is CP
51
Tracing Commingled Bank Accounts
Both SP and CP are commingled | Presumed to be CP
52
Tracing Family Expense Presumption
Family expenses presumed to be paid with CP | Any SP used because CP funds were exhausted
53
Tracing Gift Presumption
When SP used to pay family expenses Gift to community presumed and no right to reimbursement except By agreement between parties
54
Tracing Methods
Exhaustion Method | Direct Tracing
55
Tracing Exhaustion Method
SP proponent may show all CP funds were exhausted and any purchases after made with SP funds
56
Direct Tracing
SP proponent may show Sufficient CP funds and intended SP funds to purchase SP asset Marriage of Mix Requires a contemporaneous record and testimony of the intent
57
Stock Options
If option vests during marriage CP | If it vests after separation, then pro rata depending on the intent of the employer
58
Past Services Stock Options
CP = years of employment during marriage divide by difference between years from employment and date when option became exercisable Remaining SP
59
Future Services Stock Options
CP = years from date stock option was granted to legal separation and divide by difference between option grant date and the day they are exercisable Remaining SP
60
Tracing Credit Acquisitions
Determined by where creditor looked to repay debt
61
Tracing Life Insurance
Term Life: last payment made | Whole Life: pro rata where pmts came from
62
Tracing and Disposition of Insurance for Damage to Property
Character of property attached to insurance
63
Disposition CP
50/50
64
Goodwill Disposition
Pro rata based on goodwill “earned” during marriage
65
Life Insurance Disposition
Term Life: Goes to CP or SP based on who paid last premium | Whole Life: Pro rata based on premium payments
66
Severance Pay Disposition
CP unless fired during separation or divorce
67
Misappropriation Disposition
Offset against that party’s share
68
Manage Bank Account Dispositions
Belongs to person whose name account in | May order to add another to the account
69
Transfer of CP Disposition
Cannot transfer CP property to 3rd party without consideration without written consent by other spouse Remedy to revoke gift when donor alive or Revoke half if the donor is dead
70
Transfer of Household Goods Disposition
Cannot transfer or encumber without written consent of other spouse Remedy is it is voidable at any time
71
Management of Business Disposition
Spouse runs CP business Only have to give notice Remedy is to sue spouse for lack of notice if Substantially impairs value of CP interest
72
Manage and Control of real prop Disposition
Cannot transfer or encumber without consent of other spouse Remedy is to void transaction within One year and refund purchase price
73
Fid Duties between Spouses
Spouse has good faith duty to give access to all books and transactions and approval by both spouses to benefit or profit by any transaction by one spouse regarding CP
74
Lucas Reimbursements
Contributions made from SP to a CP asset treated as a gift and no reimbursement allowed Except by a signed writing
75
Anti-Lucas Reimbursement
If SP is used for CP asset | SP can be reimbursed for down payments, improvements, or principal payments on mortgage
76
Moore/Marsden
One spouse owns an SP house makes mortgage payments with CP money
77
Moore
Asset has minimal or no appreciation prior to marriage
78
Marsden
Asset has accrued appreciation prior to marriage
79
Moore/Marsden Application
SP Cont = down payment + (loan amount - CP pmts on loan) SP % of Appreciation = SP cont/purchase price CP % of Appreciation = CP cont/purchase price SP Appreciation Pre Marriage = FMV @ marriage - purchase price Appreciation @ Divorce = FMV @ divorce - FMV @ marriage SP Take = (down pmt + loan pmt) + SP appreciation + (SP % * Appreciation @ divorce) CP Take = CP cont + (CP % * Appreciation @ divorce)
80
CP Wages to SP Debts
Other spouse does not have right to withdraw Particular account cannot be used to pay Other spouse’s SP debt from before marriage
81
SP liable for
All CP and SP debts prior to or during marriage
82
SP Debt
SP of spouse always to pay that spouse’s SP but not responsible to pay for the other spouse’s SP
83
Not separated and debt for necessities
Other spouse’s SP is liable
84
If separated and debt is for common necessaries
Other spouse’s SP is liable
85
CP can be reimbursed
For child support payments up to amount used
86
Personal injury liability of other spouse SP
SP of married person not liable for
87
If tortfeasor acting for interest of community
Paid from CP first then tortfeasor’s SP
88
If tortfeasor not acting for interest of community
Paid from SP of tortfeasor first then community
89
Reimb Prof Degree/Education
Can be reimbursed for payment if Education substantially enhanced earning capacity of spouse Community not substantially benefited (10 years) and Other spouse did not get community paid education
90
Third Party cause PI recovery
Upon divorce, although CP presumed Amount awarded to injured spouse Unless commingled and unable to trace Unless justice demands otherwise
91
Spouse cause PI Recovery
SP of injured spouse and | Paid from SP of the tortfeasor spouse
92
Reimbursement for Damage to Property
Characterized by property insurance is attached | CP can be reimbursed for premiums paid with CP
93
Reimbursement for Goodwill tests
Market Value Analysis | Capitalization
94
Goodwill Market Value Analysis
Market value at which the goodwill could be sold Upon dissolution of marriage Taking into account expectancy of business continuing
95
Goodwill Capitalization
Past earnings and projected earnings | Taking into account expectancy of business continuing
96
SP Business During Marriage
Pereira/Van Camp
97
Pereira/Van Camp
Value of respective SP and CP interests in business at dissolution Court not required to use either formula and May choose more persuasive given
98
Pereira
Growth of business is attributable to personal efforts SP allocation = SP cont + (SP cont * 10% * years married) CP allocation = FMV of business - SP allocation Under Pereria, the distribution of the business would be ____ CP and ______ SP
99
Van Camp
Growth of business is attributable to other factors CP allocation = (FMV of serv - CP exp paid with bus)*years married SP allocation = FMV of business - CP allocation Under Van Camp, the distribution of the business would be _____ CP and _______SP
100
Reverse Pereira/Van Camp
When CP business continues to be operated By one spouse during separation. If appreciates in value during separation
101
Reverse Pereira
CP = Value of business at Separation + (Value of business at separation x Fair Rate of Return x Yrs of Separation) SP = FMV of Business at Divorce - CP H/W will argue reverse Pereira is the appropriate formula because [facts]
102
Reverse Van Camp
SP = Reasonable Value of Services during Separation - Family Expenses Paid During Separation CP = FMV of the Business at Divorce - SP H/W will argue reverse Pereira is the appropriate formula because [facts]

CA Essay Bar Studies (15 decks)

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