CP Flashcards
Opening Paragraph
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
Permanent Separation Req
Intent
Conduct evidencing
Perm Sep Intent
Living different house (not now)
Expressly stated
Perm Sep Conduct
No longer having sex and
Not keeping up appearances of marriage
Premarital Agreement before 1985
An oral agreement valid if fully performed or estoppel
Premarital Agreement after 1984
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
Defenses to Premarital Agreements
Involuntary
Unconscionable i.e. not all info
Steps to CP
SPAD
Source
Presumption
Action
Disposition
CP Anti-Lucas
If SP and CP funds used
Presumed CP with right to reimbursement
Rebutted by express intent as SP
CP
CP all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state
SP
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
CP Valid Marriage
Between two single people
18 years or older
Not related closer than first cousins
Ceremony licensed, witnessed, and registered
Underage Marriage
If one party underage
Need court order and Parental consent to marry
Putative Spouse
Innocent participant Legal infirmity If property acquired during Parties have QMP Estate is split equally
Domestic Partnership
Intimate and committed relationship of same sex or one partner is over 62 who
Registered as domestic partners
CL Marriage
Abolished in CA
But recognize valid CL
Created in another state
QCP Trigger
Only triggered at death of titled spouse or at divorce
If non-titled spouse dies only has rights if other state gives them
SP Unmarried Cohabitants
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
Unmarried Cohab K
K will be enforced unless based upon sexual services
Can be implied based conduct
Presumption Child/Spousal Support Debt
Shall be treated as debt incurred before marriage
Presumption Personal Injury
During marriage by 3rd party
Presumed CP
Presumption Injury by Spouse
If caused by the other spouse
Damages presumed SP
Presumption Commingling Bank
Even if funds all SP
Jointly titled account presumed CP
Presumption Pension/Retirement
CP for portion earned during marriage
Time Rule Pension/Retirement
Calculated by time employed during marriage divided by total time employed multiplied against pension payment
Presumption Prof Degree/Education
Presumed SP
CP Debt Presumption
Community liable for debt
Incurred by either spouse
Before or during marriage
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
QCP Presumption
CP
SP Debt Presumption
Liable for own SP debt but not liable for other spouse’s SP debt
Necessaries before separation
CP and SP liable for debt incurred
For necessities of life
(same economic and social position)
Necessaries after separation
CP and SP is liable for debt incurred
For common necessaries of life (food, healthcare, transgender boobies)
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
Presumption Disability benefits/workers comp
Presumed to be whatever they replace
3 Actions
Title
Tracing
Transmutation
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
Married Womens Special Presumption
Before 1975, any property acquired by married woman in her name alone
Presumed to be her SP
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
Title Post 1984
Title alone does not determine character unless acquired jointly
Title Presumption
JT
CP
CP with right of survivorship
TC
Presumed CP and can only be rebutted by transmutation
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
Title Right to Management and Control
Each party has right to manage and control CP
CP business right to management and control
Spouse who runs CP business only required to give other spouse notice
Bank Account right to management and control
Name of only one spouse
Controlled and managed by that spouse
Transmutation prior to 1985
Oral transmutations were allowed and treated as gift of a half interest property
Transmutation post 1984
Writing
Expressed Declaration: deed meets
Signed by Spouse Giving Up Interest
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
Post Marital Agreement before 1985
Orally or written
Post Marital Agreement after 1984
Written
Signed by spouse whose interest is adversely affected
Specifically State CP is SP or SP is CP
Tracing Commingled Bank Accounts
Both SP and CP are commingled
Presumed to be CP
Tracing Family Expense Presumption
Family expenses presumed to be paid with CP
Any SP used because CP funds were exhausted
Tracing Gift Presumption
When SP used to pay family expenses
Gift to community presumed and no right to reimbursement except
By agreement between parties
Tracing Methods
Exhaustion Method
Direct Tracing
Tracing Exhaustion Method
SP proponent may show all CP funds were exhausted and any purchases after made with SP funds
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
Stock Options
If option vests during marriage CP
If it vests after separation, then pro rata depending on the intent of the employer
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
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
Tracing Credit Acquisitions
Determined by where creditor looked to repay debt
Tracing Life Insurance
Term Life: last payment made
Whole Life: pro rata where pmts came from
Tracing and Disposition of Insurance for Damage to Property
Character of property attached to insurance
Disposition CP
50/50
Goodwill Disposition
Pro rata based on goodwill “earned” during marriage
Life Insurance Disposition
Term Life: Goes to CP or SP based on who paid last premium
Whole Life: Pro rata based on premium payments
Severance Pay Disposition
CP unless fired during separation or divorce
Misappropriation Disposition
Offset against that party’s share
Manage Bank Account Dispositions
Belongs to person whose name account in
May order to add another to the account
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
Transfer of Household Goods Disposition
Cannot transfer or encumber without written consent of other spouse
Remedy is it is voidable at any time
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
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
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
Lucas Reimbursements
Contributions made from SP to a CP asset treated as a gift and no reimbursement allowed
Except by a signed writing
Anti-Lucas Reimbursement
If SP is used for CP asset
SP can be reimbursed for down payments, improvements, or principal payments on mortgage
Moore/Marsden
One spouse owns an SP house makes mortgage payments with CP money
Moore
Asset has minimal or no appreciation prior to marriage
Marsden
Asset has accrued appreciation prior to marriage
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)
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
SP liable for
All CP and SP debts prior to or during marriage
SP Debt
SP of spouse always to pay that spouse’s SP but not responsible to pay for the other spouse’s SP
Not separated and debt for necessities
Other spouse’s SP is liable
If separated and debt is for common necessaries
Other spouse’s SP is liable
CP can be reimbursed
For child support payments up to amount used
Personal injury liability of other spouse SP
SP of married person not liable for
If tortfeasor acting for interest of community
Paid from CP first then tortfeasor’s SP
If tortfeasor not acting for interest of community
Paid from SP of tortfeasor first then community
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
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
Spouse cause PI Recovery
SP of injured spouse and
Paid from SP of the tortfeasor spouse
Reimbursement for Damage to Property
Characterized by property insurance is attached
CP can be reimbursed for premiums paid with CP
Reimbursement for Goodwill tests
Market Value Analysis
Capitalization
Goodwill Market Value Analysis
Market value at which the goodwill could be sold
Upon dissolution of marriage
Taking into account expectancy of business continuing
Goodwill Capitalization
Past earnings and projected earnings
Taking into account expectancy of business continuing
SP Business During Marriage
Pereira/Van Camp
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
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
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
Reverse Pereira/Van Camp
When CP business continues to be operated
By one spouse during separation.
If appreciates in value during separation
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]
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]
