Kaplan Pgs 131-140 Characterization or Property

Question 1

What are the things that are associated with separate property that are also considered to be separate property?

Answer 1

Rents, issues, and profits, as well as appreciation in value

Question 2

If you receive property in exchange for your SP, what is this received property classified as?

Answer 2

SP

Question 3

If two people live together and know they are not married, what is all of the property presumed to be?

Answer 3

The SP of each party

Question 4

Who has the burden of proof and what is the standard with regard to the classification of property as separate property instead of community property?

Answer 4

The party that is trying to assert that the property should be classified as separate has the burden of proof. The standard of proof is by a preponderance of the evidence

Question 5

What is an example of quasi-community property?

Answer 5

If a husband and wife were married in Florida where they bought a small house that they jointly titled and they lived in for five years, then moved to California and filed for divorce in California. The Florida house would’ve been community property if it had been acquired while they were domiciled in California, so it is classified as quasi-community property

Question 6

What is the legislative intent behind quasi-community property?

Answer 6

To protect the property rights of people that are married in a CL state and then later move to California and get divorced or one spouse dies. Without this, a married person would suffer a loss of property just by moving to California because his SP that he acquired during the marriage in another state would change to CP as soon as he domiciled in California

Question 7

What is the only time that the characterization of an asset as “quasi-community property” becomes significant?

Answer 7

Only on divorce or death

Question 8

What is it called when an asset is partly community property and partly separate property?

Answer 8

Commingling

Question 9

What is an example of commingling?

Answer 9

If you own a house, then get married, and you sell your house and use the proceeds for a down payment on another house for you and your husband. The down payment is separate property but mortgage payments that are made during the marriage with your earnings are community property. So the equity in the house is commingled because it is part community property and part separate property

Question 10

Property acquired by spouses during the marriage in joint form is presumed to be what?

Answer 10

Community property

Question 11

When spouses take property in joint form, what has happened?

Answer 11

They have made an agreement to hold the property jointly. This agreement can only be rebutted by another agreement

Question 12

What are the two different views that come into play when there is property held jointly in joint form?

Answer 12

– Marriage of Lucas

– Anti-Lucas

Question 13

What happened in Lucas?

Answer 13

This held that when a couple takes title as joint tenants, which is presumptively community property, the property continues to be presumed to be community property unless there’s proof of an agreement that one spouse has a separate property interest in it. If there is no agreement about this, then any separate property that is contributed is presumed to be a gift and the separate property spouse has no separate property interest or right to reimbursement

Question 14

In response to Lucas, the California legislature passed the anti-Lucas legislation that said what?

Answer 14

The presumption that property is community property can be rebutted by:
– documentary evidence of title showing that the property is separate property, or
– proof that the spouses have agreed in writing to classify the property as separate property

Question 15

What is an example of how anti-Lucas would work?

Answer 15

If Bob’s mom gave him a car just after he got married, but included a writing that made it clear that the car was an early delivery of part of his inheritance, even though the presumption is that it would be community property, because of the clear donative intent made by the mom, the car will be classified as Bob’s separate property.

Question 16

Is the common law tenancy by the entirety form of joint ownership recognized in California?

Answer 16

No

Question 17

When is the character of property fixed?

Answer 17

At the time the property is acquired.

Question 18

If property is acquired over time and title does not vest in the purchaser until the full price has been paid, how does the character of the property get classified?

Answer 18

Each payment is considered to buy into the title for the portion that it bears to the whole price that is paid

Ie: if a husband and wife buy a boat for $10,000 over time with no down payment and the bank keeps title until the boat is fully paid off, and each month they make a principal payment of $1000, after the first month the community has a 10% interest in the boat, after the second it has a 20% interest, etc.

Question 19

If a gift is given to both spouses which is delivered prior to the marriage, such as a wedding present, how is it held?

Answer 19

By the spouses as tenants in common

Question 20

What is a presumption?

Answer 20

An assumption of fact required by law

Question 21

How do you rebut a presumption?

Answer 21

Upon an evidentiary showing that the presumed fact is false

Question 22

If a couple separated after a 20 year marriage and there was $10,000 of cash in a shoebox under the bed, what is that presumed to be?

Answer 22

Community property unless one party can clearly trace the cash to show that it is separate property

Question 23

If someone holds an asset by legal title or equitable title at the time of his death, the CP presumption does not apply if what?

Answer 23

The property was acquired during the marriage but the marriage terminated more than four years before his death

Question 24

What is involved in the married woman’s special presumption?

Answer 24

Property acquired by a married woman as evidenced by written instrument before January 1, 1975 is subject to this special set of presumptions:
– if title is taken in the woman’s name alone: it is presumed to be her SP. This can be rebutted by the husband showing he did not intend to change the property into his wife’s separate property
– if title is in the name of husband and wife and the instrument describes them as such: property is presumed to belong to the community
– if property is acquired jointly by the woman and any other person besides her husband: each party is presumed to possess the asset as tenants in common
– if title is taken in the name of husband-and-wife, but not as joint tenants and not specifically calling them husband and wife or Mr. and Mrs: The property is presumed to be half the wife’s SP and half community property