Final Flashcards
Steps to Dissolution
1) Identity
2) Characterize
3) Value
4) Divide
CP Definition
Property acquired during marriage, prior to separation, other than property acquired by gift, bequest, or devise
SP Defintion
Property owned before marriage, property acquired by gift, bequest, or devise, and rents, issues, and profits from such property
Post-Separation Earnings
The earnings and accumulations of a spouse while living separate and apart are the SP of the spouse
Living Separate and Apart
Manfer - must have subjective intent and conduct evincing a complete and final break in the marital relationship
Davis- have to be physically living in separate residences
Community Expenses
Non-statutory presumption that community expenses are paid from community funds
Total Recapitulation
Indirect tracing method that shows there were not community funds available at the time of a purchase, so it must have been made with separate funds
CP Presumption
All property acquired in joint form during the marriage is presumed to be CP for the purpose of dissolution of marriage or legal separation of the parties (NOT death of a party)
Essence of Partnership
Combined effort to produce a community, so the products of that community should be shared equally
Marriage of Bonds
One party’s lack of counsel is not an automatic fail on enforceability of pre-marital agreement
Legislative Reaction to Bonds
- Every provision about spousal support is unenforceable if the party does not have independent counsel OR if it is unconscionable at the time of enforcement
- Invalid if unrepresented party had less than 7 days from presentation to signing
- Presumption of involuntariness if party doesn’t have independent counsel OR was advised of the right but failed to waive it in a separate writing
Challenges to Pre-nups
1) Voluntariness
2) Lack of knowledge of assets of other party
3) Unconscionability
Presumption of Undue Influence
There is a presumption of undue influence and coercion where, as a result of an interspousal transaction, one spouse gains an unfair advantage over the other
§852
A transmutation is not valid unless made in writing by an express declaration by the adversely-affected spouse
Does NOT apply to tangible gifts of a personal nature that are not substantial in value under the circumstances of the marriage
Express Declaration Guideposts
- Must evidence a clear and unambiguous intent to transfer an interest, independent of extrinsic evidence
- Where 2 presumptions conflict, the more specific prevails
Transmutation Issues
1) §852 Compliance
2) Presumption of undue influence
3) Violation of fiduciary duties
Deed Presumption
Upon death, there is a rebuttable presumption that property is held as it is listed in the deed
§2460 Reimbursement
SP contributions to the acquisition of or improvements to CP are reimbursable, without interest, unless there has been a waiver in writing
Includes down payments, payments to reduce the principle, or payment for improvement that increase the value of property
Void Marriages
- Incest
- Bigamy
Voidable Marriages
Fraud
Quasi-Marital Property
- Treated the same as CP
- Requires good faith belief that you were married
Marvin v. Marvin
- Cts should enforce express Ks between non-marital partners except where they are explicitly founded solely on prostitution
- K can be oral, written, or even implied from conduct
Goodwill
The intangible value of a business from the expectation of future patronage
Student Loan Debt
Assignable to party who incurred it, without offset, upon division of the estate
Education Reimbursement
Community reimbursement for education or training of a party that substantially enhances the earning capacity of the party
There is a rebuttable presumption that the community has benefitted from the education if more than 10 yrs have passed
Finby
Book of business developed during marriage is an asset subject to valuation and division upon dissolution
Renewable Life Insurance
If premium is paid w/ CP and person dies while it is in effect, the payment is CP
Quasi-Community Property
Property acquired by either spouse while domiciled elsewhere that would have been CP if domiciled in CA
Applies if both spouses move to CA and initates proceedings OR if either spouse moves to CA and the other consents to jx
Retroactivity
Statutes can be applied retroactively if enacted to further an important state interest or to correct a rank injustice
See Rule
Total recapitulation method can be used ONLY if, through no fault of the acquiring spouse, it is not possible to ascertain the balance of income and expenditures at the time the property was acquired
Epstein Credit
- See rule does not apply to expenditures subsequent to separation
- Spouse can get reimbursed for SP payment of CP expense
Business Profits
When community efforts are applied to a separate business and its value is increased, the increase in value needs to be apportioned between the community and separate estates
Pereira Rule
A fair return on the spouse’s SP investment is allocated as separate income, then any excess increase is allocated to the community
Van Camp Rule
The reasonable value of the spouse’s services is allocated to the community. then the balance is treated as SP
Credit Presumption
- There is a rebuttable presumption that property acquired on credit during marriage is CP
- Can be overcome by proof that the creditor relied solely on his/her CP in extending the credit
Marriage of Moore
Where community funds are used to make payments on property purchased before marriage, the community acquires a pro tanto interest in the property based on the ratio that the reduction of the principle based on the community funds bears to the reduction in principle based on SP payments
Community Estate Personal Injury Damages
Presumptively awarded to the injured spouse, but the ct has discretion to award up to one half to the non-injured spouse based on:
- economic needs & conditions of either party
- elapsed time
- other factors in the interest of justice
Time Rule
CP interest = # of yrs worked during marriage/# of yrs worked total
Marriage of Brown
Non-vested rights are contingent interests in property to the extent that such rights derive from employment during marriage, they are a community asset subject to division
Disability Insurance
- Purpose is to compensate for loss of future earnings
- If earnings lost are those after separation, the benefits are SP even if the community contributed to the policy and the right to renew was acquired during marriage
Termination Benefits
The key is whether the benefits stems from an earned absolute right under the employment K OR is fashioned at the time of termination to alleviate the difficulties of unemployement
Spousal Management
Each spouse has management and control of the CP
Fiduciary Duties
In a transaction between the spouses, they are subject to the same rules that govern fiduciary relationships
-duty of highest good faith and fair dealing
Remedies for Breach of Fiduciary Duty
- Accounting
- Reformation of title
- 50% value of undisclosed asset + atty fees
- If there was intentional, malicious concealment, 100% value of undisclosed asset + atty fees
Community Real Property
Both spouses must execute a written instrument before community real property can be:
- sold
- leased for more than 1 yr
- conveyed
- encumbered
FLARPL
Family law atty can encumber up to 1/2 the value of the CP real prop after giving notice and an opportunity to be heard
Tort Debts
- If one spouse committed the tort in connection with an activity for the benefit of the community, the creditor can collect against CP first
- If not, the creditor must collect from tortfeasors first
American Olean Tile Co
After the execution of a valid marital settlement agreement, negotiated at arm’s length, provides that a community business is transferred to the spouse, who has been exclusively operating it as his SP, all obligations of the business incurred thereafter are the sole obligation of the recipient spouse
Grounds for Dissolution
- Irreconcilable differences
- Permanent legal incapacity to make decisions
Waiting Period
The ct can’t enter final judgement until at least 6 months after service of summons and petition
Judicial modification
If you want to prevent judicial modification, you have to do so super clearly
“Non-modifiable in amount and duration. Ct’s jx on this matter is irrevocably terminated”
Negative Asset Estate
Debts > assets
Ct has the power to disproportionately divide the debt based on the respective earning capacities of the spouses
Deferred Home Sale Order
Sale of the family home can be deferred for the benefit of the children only if it is economically feasible to maintain payments for the house:
- resident parent’s income
- availability of spousal support, child support, or both
- any other sources of funds available to make the payments
