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CA Essay Bar Studies > CP > Flashcards

CP Flashcards

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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
Q

Presumption Pension/Retirement

A

CP for portion earned during marriage

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26
Q

Time Rule Pension/Retirement

A

Calculated by time employed during marriage divided by total time employed multiplied against pension payment

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27
Q

Presumption Prof Degree/Education

A

Presumed SP

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28
Q

CP Debt Presumption

A

Community liable for debt
Incurred by either spouse
Before or during marriage

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29
Q

Separate Earnings Presumption

A

Earnings of spouse not liable for debt incurred by the spouse before marriage
If kept separate and spouse has no right of withdrawal

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30
Q

QCP Presumption

A

CP

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31
Q

SP Debt Presumption

A

Liable for own SP debt but not liable for other spouse’s SP debt

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32
Q

Necessaries before separation

A

CP and SP liable for debt incurred
For necessities of life
(same economic and social position)

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33
Q

Necessaries after separation

A

CP and SP is liable for debt incurred

For common necessaries of life (food, healthcare, transgender boobies)

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34
Q

Presumption Personal Injury or Death

A

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

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35
Q

Presumption Disability benefits/workers comp

A

Presumed to be whatever they replace

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36
Q

3 Actions

A

Title
Tracing
Transmutation

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37
Q

CP Title

A

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

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38
Q

Married Womens Special Presumption

A

Before 1975, any property acquired by married woman in her name alone
Presumed to be her SP

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39
Q

Title after 1975 but prior to 1985

A

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

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40
Q

Title Post 1984

A

Title alone does not determine character unless acquired jointly

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41
Q

Title Presumption

A

JT
CP
CP with right of survivorship
TC

Presumed CP and can only be rebutted by transmutation

42
Q

2581 statement in deed

A

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
Q

Title Right to Management and Control

A

Each party has right to manage and control CP

44
Q

CP business right to management and control

A

Spouse who runs CP business only required to give other spouse notice

45
Q

Bank Account right to management and control

A

Name of only one spouse

Controlled and managed by that spouse

46
Q

Transmutation prior to 1985

A

Oral transmutations were allowed and treated as gift of a half interest property

47
Q

Transmutation post 1984

A

Writing
Expressed Declaration: deed meets
Signed by Spouse Giving Up Interest

48
Q

Exceptions to Transmutation for Gifts

A

Gifts of personal nature

If used solely or primarily by the spouse to whom the gift was made and not substantial in value

49
Q

Post Marital Agreement before 1985

A

Orally or written

50
Q

Post Marital Agreement after 1984

A

Written
Signed by spouse whose interest is adversely affected
Specifically State CP is SP or SP is CP

51
Q

Tracing Commingled Bank Accounts

A

Both SP and CP are commingled

Presumed to be CP

52
Q

Tracing Family Expense Presumption

A

Family expenses presumed to be paid with CP

Any SP used because CP funds were exhausted

53
Q

Tracing Gift Presumption

A

When SP used to pay family expenses
Gift to community presumed and no right to reimbursement except
By agreement between parties

54
Q

Tracing Methods

A

Exhaustion Method

Direct Tracing

55
Q

Tracing Exhaustion Method

A

SP proponent may show all CP funds were exhausted and any purchases after made with SP funds

56
Q

Direct Tracing

A

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
Q

Stock Options

A

If option vests during marriage CP

If it vests after separation, then pro rata depending on the intent of the employer

58
Q

Past Services Stock Options

A

CP = years of employment during marriage divide by difference between years from employment and date when option became exercisable
Remaining SP

59
Q

Future Services Stock Options

A

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
Q

Tracing Credit Acquisitions

A

Determined by where creditor looked to repay debt

61
Q

Tracing Life Insurance

A

Term Life: last payment made

Whole Life: pro rata where pmts came from

62
Q

Tracing and Disposition of Insurance for Damage to Property

A

Character of property attached to insurance

63
Q

Disposition CP

A

50/50

64
Q

Goodwill Disposition

A

Pro rata based on goodwill “earned” during marriage

65
Q

Life Insurance Disposition

A

Term Life: Goes to CP or SP based on who paid last premium

Whole Life: Pro rata based on premium payments

66
Q

Severance Pay Disposition

A

CP unless fired during separation or divorce

67
Q

Misappropriation Disposition

A

Offset against that party’s share

68
Q

Manage Bank Account Dispositions

A

Belongs to person whose name account in

May order to add another to the account

69
Q

Transfer of CP Disposition

A

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
Q

Transfer of Household Goods Disposition

A

Cannot transfer or encumber without written consent of other spouse
Remedy is it is voidable at any time

71
Q

Management of Business Disposition

A

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
Q

Manage and Control of real prop Disposition

A

Cannot transfer or encumber without consent of other spouse
Remedy is to void transaction within
One year and refund purchase price

73
Q

Fid Duties between Spouses

A

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
Q

Lucas Reimbursements

A

Contributions made from SP to a CP asset treated as a gift and no reimbursement allowed
Except by a signed writing

75
Q

Anti-Lucas Reimbursement

A

If SP is used for CP asset

SP can be reimbursed for down payments, improvements, or principal payments on mortgage

76
Q

Moore/Marsden

A

One spouse owns an SP house makes mortgage payments with CP money

77
Q

Moore

A

Asset has minimal or no appreciation prior to marriage

78
Q

Marsden

A

Asset has accrued appreciation prior to marriage

79
Q

Moore/Marsden Application

A

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
Q

CP Wages to SP Debts

A

Other spouse does not have right to withdraw
Particular account cannot be used to pay
Other spouse’s SP debt from before marriage

81
Q

SP liable for

A

All CP and SP debts prior to or during marriage

82
Q

SP Debt

A

SP of spouse always to pay that spouse’s SP but not responsible to pay for the other spouse’s SP

83
Q

Not separated and debt for necessities

A

Other spouse’s SP is liable

84
Q

If separated and debt is for common necessaries

A

Other spouse’s SP is liable

85
Q

CP can be reimbursed

A

For child support payments up to amount used

86
Q

Personal injury liability of other spouse SP

A

SP of married person not liable for

87
Q

If tortfeasor acting for interest of community

A

Paid from CP first then tortfeasor’s SP

88
Q

If tortfeasor not acting for interest of community

A

Paid from SP of tortfeasor first then community

89
Q

Reimb Prof Degree/Education

A

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
Q

Third Party cause PI recovery

A

Upon divorce, although CP presumed
Amount awarded to injured spouse
Unless commingled and unable to trace
Unless justice demands otherwise

91
Q

Spouse cause PI Recovery

A

SP of injured spouse and

Paid from SP of the tortfeasor spouse

92
Q

Reimbursement for Damage to Property

A

Characterized by property insurance is attached

CP can be reimbursed for premiums paid with CP

93
Q

Reimbursement for Goodwill tests

A

Market Value Analysis

Capitalization

94
Q

Goodwill Market Value Analysis

A

Market value at which the goodwill could be sold
Upon dissolution of marriage
Taking into account expectancy of business continuing

95
Q

Goodwill Capitalization

A

Past earnings and projected earnings

Taking into account expectancy of business continuing

96
Q

SP Business During Marriage

A

Pereira/Van Camp

97
Q

Pereira/Van Camp

A

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
Q

Pereira

A

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
Q

Van Camp

A

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
Q

Reverse Pereira/Van Camp

A

When CP business continues to be operated
By one spouse during separation.
If appreciates in value during separation

101
Q

Reverse Pereira

A

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
Q

Reverse Van Camp

A

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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