Joint deeds and titles

Question 1

Joint titles (after 1/1/87)

Answer 1

1. Presumption—jointly titled property acquired during marriage is CP upon divorce (can be rebutted by an agreement stating the contrary)
2. CP with right of survivorship (after7/1/01)—permitted if express in deed; treated as CP during the marriage and at divorce, but the right of survivorship applies upon death

Question 2

Property purchased with CP and SP funds

Answer 2

1. Lucas (before 1984)—property is presumptively CP (rebuttable by clear and convincing evidence), SP funds presumed to be a gift to the community, and no right of reimbursement
2. Anti-Lucas (after 1984)—CP presumption expanded to include all jointly held property (as of 1987) held by married couples, rebuttable by express statement in deed or collateral writing that property is SP, and spouse making SP contribution has right of reimbursement (without interest)
3. Retroactive application—when no vested property rights are at risk (e.g., a survivorship interest in joint tenancy), the Anti-Lucas statutes may be retroactively applied
4. Apportioning Interest of CP and SP
   • If SP used as a down payment on CP acquired with a CP loan, the presumption of CP controls; rebuttable by a writing indicating the SP interest in the property is intact
   o Aufmuth formula—if the presumption is rebutted, the pro rata SP share = SP contribution / purchase price
   • Anti-Lucas legislation does not apply to CP contributions for SP
   o CP acquires pro-rata interest in SP = CP contributions / [total purchase price + appreciation in value during the time of CP payments]
   • Payments toward interest, taxes and insurance are not “contributions” in these formulas because they do not contribute to equitable interest