Introduction

Question 1

Seperate Property

Answer 1

Property owned by either spouse before marriage

Property acquired during marriage by gift, will, or inheritance

Property acquired during marriage with separate funds

Property covered by valid premarital agreement

Income from separate property

Tort recovery from personal injury (unless spouses sue jointly, then only pain and suffering)

Question 2

Community Property

Answer 2

Property other than separate property, acquired by either spouse during the marriage.

Question 3

Community Presumption

Answer 3

All assets acquired during marriage presumptively belong to the community.

All assets acquired on credit during the marriage are presumptively acquired on community credit.

All assets on hand whenever the issue is raised (divorce, death, creditor’s claim) are presumptively community property.

Question 4

Burden for Overcoming Community Presumption

Answer 4

The party contending that a piece of property is not community property must show that by clear and convincing evidence.

Question 5

Child’s Earning

Answer 5

Presumptively CP if parents are married, otherwise SP of custodial parent regardless of whether there is a formal custody award.

Can be “relinquished” to the child.

Child’s passive earnings are the child’s property.

Question 6

Unmarried People’s Property

Answer 6

They will have a tenancy in common.

Question 7

When does the marital community end?

Answer 7

When there is a final decree of divorce or a decree of legal separation is entered.

Question 8

Royalty Payments

Answer 8

If the book/song/movie was produced during the marriage, all royalty payments are CP even after divorce.

Question 9

Compelling Reasons for Justifying Unequal Distribution of Estate

Answer 9

Financial Misconduct of One Spouse

Abuse that generates expenses or affects the spouse’s ability to work

Question 10

Alimony Factors

Answer 10

Career prior to marriage
Length of the marriage
Education during the marriage
Marketability of each spouse
Ability to support themselves
Who stayed home with the children
Job Skills Obtained During Marriage
Financial Support in Obtaining New Skills
Such other factors as court deems appropriate

Question 11

Gifting Community Property

Answer 11

Neith spouse can make a gift of community property without the other spouse’s express consent.

Question 12

Credit Obtained During Marriage

Answer 12

Credit Obtained during marriage is presumptively community.

Courts may also look at the primary intent of the lender. but subsequent actions of the parties in paying off the loan may change the character of the asset under the proration rule.

Question 13

Effects of Moving from Common Law State

Answer 13

In common law states, each spouse’s salary is their own separate property and the title of physical items determines ownership.

However, you cannot lose property rights by moving to a new state, so if it was separate property in another state it will remain separate property when moved to Nevada.

Question 14

Premarital Agreement Coverage

Answer 14

Anything except child support and an alimony aversion clause that would leave one spouse on public assistance.

Question 15

Defenses to Premarital Agreements

Answer 15

Not voluntary
Unconscionable (when made)
No fair disclosure and no knowledge of other party’s financial situation.

Question 16

Transmutations

Answer 16

Marital agreements made during marriage

Must be in writing, signed, and notarized.

Question 17

Spouse to Spouse Land Transfer

Answer 17

Creates a presumption of a gift that can only be overcome by clear and convincing evidence.

Question 18

Malmquist

Answer 18

If a purchase is made before marriage but paid down with CP, the proration rule applies.

The appreciate of the asset from the date of purchase to the date of divorce is prorated based on the number of monthly payments made from SP vs. CP.

Only funds that reduce the debt apply the proration rule, taxes, upkeep, etc. are not counted.

Question 19

Life Insurance Acquired Before Marriage but Paid with CP During Marriage

Answer 19

Proration Rule Applies

Question 20

Family Expense Presumption

Answer 20

It is presumed that expenditures for family expenses were made with community funds. If SP were used for family stuff, there is still a presumption that it is a gift the community with no expectation of repayment.

Question 21

Commingled Bank Accounts

Answer 21

The burden is on the spouse who wishes to claim the property is SP to prove by clear and convincing evidence (using tracing or exhaustion) that the property was SP.

Question 22

SP Businesses that Appreciate During Marriage

Answer 22

Use Pereira when the appreciation is due to the Personal Skills and Labor of one spouse. Under this formula, pay interest (fair return) on SP and the rest is CP (to be split 50/50).

Use Van Camp when there is a valuable company/asset (luck, market forces, etc.). Under this formula, take the value of the community labor (spouses services at market rate) subtract the family expenses that were paid from CP. Give what is left to the community (to be split 50/50), the rest is seperate property.

Note Nevada prefers Pereira.

Question 23

Retirement

Answer 23

Employee Retirement Benefits accumulated during marriage (whether or not vested at time of divorce) are CP.

Take years of service while married divided by total years of employment before retirement.

Question 24

Ways of Cashing out Retirement Benefits at Divorce

Answer 24

Present Cash Value Approach: requires a reasonable certainty as to value and enough existing funds to satisfy the other spouse’s interest.

Wait and See Approach (preferred): The community interest is in the pension that is ultimately received. Take years of service while married divided by total number of years of employment before eligible for retirement and apply to value at retirement. Right becomes available at the eligible date or retirement, regardless of whether spouse actually retires then.

Question 25

Disability and Workers Comp

Answer 25

Treated as wage replacement. If earned during the marriage, CP. If after divorce, SP.

Question 26

Good Will of Professional Practice

Answer 26

Business reputations (and earnings from it) are CP

To calculate, use expert witness testimony and three month’s receipts or capitalization of “excess earnings” attributed to goodwill.

Question 27

Tort Liability

Answer 27

If a spouse is found personally liable for something, that liability attaches to SP and his/her contributions to community estate (salary/wages) but not the other spouse’s (rest of CP) unless the tort occurred for the benefit of the community/family.

Question 28

Power to Manage Community Property

Answer 28

Spouses have equal management powers meaning they each has full power (including power to buy, sell, or contract debts) without other spouse’s consent.

Business Management Exception: If only one spouse participates in the management of CP business, they may buy/sell as they please but if they are co-owners or managers of a business, they need the consent of the other.

Question 29

Necessaries Doctrine

Answer 29

If one spouse racks up debt for necessaries (food, shelter, medical) and there isn’t enough SP or CP to cover the debt, creditors may come after the innocent spouse’s CP.

Question 30

Splits of Unmarried People

Answer 30

Governed by contract law, whether express or implied, so long as the contract was not solely for sex.

Question 31

Putative Spouse

Answer 31

A person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person. It is a marriage entered into in good faith, but invalid due to a legal flaw, such as the existence of a prior marriage.

Any assets acquired by during the marriage are quasi-marital property and split 50/50 as if they were CP. However, absent fraud a putative spouse is not eligible for alimony.