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CFLS > Marital Property > Flashcards

Marital Property Flashcards

1
Q

The court has _______ to divide property in relationship status proceedings.

A

subject matter jurisdiction

Fam. Code 2010

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2
Q

“Property” includes ______ and any interest therein.

A

real and personal property

Fam. Code 113

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2
Q

“Community estate” includes both ______.

A

community property and quasi-community property

Fam. Code 63

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3
Q

All property, real or personal, wherever situation, acquired by a _____ during the marriage while _____ in this state is community property.

A

married person

domiciled

Fam. Code 760

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4
Q

Unless otherwise expressly stated, community property that is transferred to ____ remains community property during the marriage.

A

a trust

Fam. Code 761

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5
Q

For purposes of division of property on dissolution of marriage or legal separation, acquired during marriage in ____ is presumed CP.

A

joint form, held in:
tenants in common,
JT,
tenancy by the entirety, or
CP

Fam. Code 2581

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6
Q

To rebut CP presumption, there must be _______ in deed or other documentary evidence of title OR proof the parties have _______.

A

clear statement

a written agreement the property is SP

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7
Q

A transmutation of real or personal property is not valid unless _______ that is made, joined in, consented to, or accepted by the _______.

A

made in writing by an express declaration

spouse whose interest in the property is adversely affected

Fam. Code 852(a)

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7
Q

Use of the term “transmutation” while transferring assets to a trust _____, regardless of ______ at the time it was effectuated. This does not waive the party’s _______.

A

is an effective transmutation

the parties intent

2640 reimbursement claims

Marriage of Holtemann (2008) 166 Cal.App.4th 1166

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7
Q

Interspousal deed transfer _______.

A

satisfies 852’s transmutation requirement

Marriage of Kushesh & Kushesh-Kaviani (2018) 27 Cal.App.5th 449

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7
Q

Language in a trust that “Settlors agree that any property transferred by either of them to the Trust . . . is the community property of both of them unless such property is identified as the separate property of either Settlor” is _______.

A

not sufficient to meet 852 requirements

Marriage of Starkman (2005) 129 Cal.App.4th 659

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8
Q

“Quasi-community property” means all property acquired during marriage by either spouse while ______ which would have been CP if it had been acquired ______.

A

domiciled elsewhere

while living in CA

Fam. Code 125

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8
Q

Status of property as community or separate is normally determined at ______ and is not dependent on ______.

A

time of acquisition

how title is taken

Marriage of Buol (1985) 39 Cal.3d 751

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8
Q

Fam. Code 125 was improper where the wife ______.

A

remained living in another state

Marriage of Roesch (1978) 83 Cal.App.3d 96

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8
Q

To record a lis pendens against a property, there must be a _______ in the specified property.

A

verified pleading claiming a community interest

Gale v. Superior Court (2004) 122 Cal.App.4th 1388

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8
Q

Purchase in one spouse’s name during marriage alone is not a ______. ______ unless traceable to a separate source.

A

transmutation to SP

Presumed CP

Marriage of Valli (2014) 58 Cal.4th 1396

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8
Q

Absent statute to the contrary, personal property acquired by a spouse during marriage while domiciled in a _____ does not lose its character as the separate property of the acquiring spouse upon a ________. HOWEVER, FC 125 applies if (1) _____ have changed their domicile to CA; and (2) after the change in domicile, the spouses’ ______.

A

common law state

change of domicile to a community property state

both parties

dissolution is in CA

Addison v. Addison (1965) 62 Cal.2d 558

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8
Q

Spouses have _____ in community property.

A

equal interest

Fam. Code 751

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8
Q

Community property shall be _______ upon dissolution of marriage.

A

divided equally between spouses

Fam. Code 2550

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9
Q

Title taken jointly is ______, and overcoming the presumption cannot be overcome by ______.

A

presumed to be CP

a showing of hidden intent

Marriage of Lucas (1980) 27 Cal.3d 808

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9
Q

Cannot order _______ over objection of a party because value and division is a ______.

A

interspousal auction of property

non delegable function

Marriage of Cream (1993) 13 Cal.App.4th 81

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9
Q

Court may ______ to effect substantially equal division.

A

award an asset to one party

Fam. Code 2601

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10
Q

_______ is ordinarily the preferred distribution.

A

In-kind division

Marriage of Behrens (1982) 137 Cal.App.3d 562

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10
Q

If equal division cannot be done through in-kind the court must _____.

A

allocate the property using some other method (i.e. equalization cash payment)

Marriage of Andresen (1994) 28 Cal.App.4th 873

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11
Q
A
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12
Q

The court cannot consider ______ in division except by proof it is immediate and specific.

A

tax liability

Marriage of Fonstein (1976) 17 Cal.3d 738

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13
Q

The court cannot _______ as this would, on its face, be an unequal division of the community assets.

A

defer an equalization payment 10 years

Marriage of Tammen (1976) 63 Cal.App.3d 927

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14
Q

Court has continuing jurisdiction to award community assets and liabilities that have _______ in the proceeding. The division should be equal UNLESS the court _______ require an unequal division.

A

not been adjudicated by a judgment

finds the interests of justice

Fam. Code 2556

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15
Q

The court awarded the entirety of $1.33M of lottery proceeds to husband because wife _______.

A

intentionally concealed them from husband and the court

Marriage of Rossi (2001) 90 Cal.App.4th 34

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16
Q

Community estate personal injury damages shall be assigned to the _______ unless the court determines that the interests of justice require another disposition, with at least ______. The funds are CP if the _____________ even if funds are received after separation.

A

party who suffered the injuries

one-half going to the injured spouse

cause of action arose during the marriage

Fam. Code 2603

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17
Q

Even if property is purchased with personal injury money, it is not _______ and 2603 still applies to division.

A

transmuted to normal CP

Marriage of Devlin (1982) 138 Cal.App.3d 804

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18
Q

Payout from ________ to the injured spouse is “personal injury damages” under 2603 even if the community paid all the premiums.

A

uninsured motorist coverage

Marriage of Jackson (1989) 212 Cal.App.3d 479

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19
Q

The court may issue pendente lite orders for the care of a ______ AND order as final either ______.

A

community pet

sole or joint ownership of a community pet

Fam. Code 2605

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20
Q

The court may divide CP or quasi-CP interest in out of state property including _______ with money value.

A

conveyance of the property or offset

Fam. Code 2660

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21
Q

The court may make any orders the court considers _______.

A

necessary to carry out the division of property

Fam. Code 2553

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22
Q

The court may order mandatory ______ where the total value is less than $50k.

A

arbitration of estates

Fam. Cod 2554

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23
Q

The court has jurisdiction to ______ even after appeal.

A

revise the disposition of CP estate

Fam. Code 2555

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24
Q

The court retains jurisdiction to divide ______ of the estate.

A

omitted assets or obligations

Fam. Code 2556

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25
Q

General language in the judgment that all property has been divided does not bar a _______.

A

RFO for an omitted asset or obligation

Marriage of Moore & Ferrie (1993) 14 Cal.App.4th 1472

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26
Q

“Date of separation” means complete and final break in the marital relationship as evidenced by: _______.

A

(1) expression to the other intent to end the marriage and
(2) conduct is consistent with intent

Fam. Code 70

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27
Q

Separation was earlier date because H announced to W that the marriage was over. Parties did not celebrate holidays or vacation together. H only came back to the residence to retrieve belongings and prepare taxes. Parties also each visited with children separated. The court does not have to issue _______

A

“express findings as to a declaration of intent or conforming conduct.”

Marriage of Lee and Lin (2019) 41 Cal.App.5th 698

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28
Q

_______ was not sufficient to show a “final rupture” of the marital relationship where facts showed the parties held themselves out as married and evidence that the situation was temporary.

A

Living in different locations

Makeig v. United Sec. Bank & Trust Co. (1931) 112 Cal.App. 138

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29
Q

Living separate and apart due to _______ is not sufficient to show partying of the ways.

A

economic or social reasons

Kerr v. Kerr (1960) 182 Cal.App.2d 12

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30
Q

No separation where Husband _______ and ______. Husband went with wife to Sun Valley for a week without the children. Husband attended social functions with wife and sent gifts and cards to her on holidays. The parties continued to file joint income tax returns, and husband maintained his voting registration at the family residence.

A

ate frequently at the family residence

took his family on trips

Marriage of Baragry (1977) 73 Cal.App.3d 444

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31
Q

Even though W moved out and filed for dissolution, the parties continued sexual relations once W moved out and saw a marriage counselor, as well as W moved back in the house one year later which was _______.

A

sufficient to find that there was not a complete and final break in the marital relationship

Marriage of Marsden (1982) 130 Cal.App.3d 426

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32
Q

The court is not bound by a _____ and has a duty to consider all evidence in determining the date.

A

stipulated separation date

Marriage of Umphrey (1990) 218 Cal.App.3d 647

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33
Q

No separation where parties maintained ______, and took title to new car jointly. Husband visited home frequently and took Wife on vacations, and contributed to the community. They went out socially, sent cards and gifts on special occasions, and continued _____.

A

joint accounts and tax returns

sexual relations

Marriage of von der Nuell (1994) 23 Cal.App.4th 730

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34
Q

The parties continued to see each other regularly, their economic relationship remained unchanged, and they purchased real property together, and H continued to receive mail at W’s residence. He also did not ______ until several years after the claimed DOS.

A

make a decision to end the marriage

Marriage of Hardin (1995) 38 Cal.App.4th 448

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35
Q

DOS where parties _____, save occasional social engagements to carry out their mutual agreement to keep the separation a secret from their daughter.

A

disentangled their lives in all respects

Marriage of Manfer (2006) 144 Cal.App.4th 925

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36
Q

If there is no evidence the lender _______ in extending the loan, the community property presumption stands.

A

primarily relied upon separate property

Gudelj v. Dudelj (1953) 41 Cal.2d 202

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37
Q

CP presumption may be overcome by showing the lender intended to _______ and in fact did so.

A

rely solely upon SP

Marriage of Grinius (1985) 166 Cal.App.3d 1179

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38
Q

A lender/borrower relationship can be drawn from a promissory note and the lender intent doctrine only works one way: _______. The burden is on the party ______.

A

CP presumption may be overcome by showing reliance solely on SP

who claims SP

Marriage of Brandes (2015) 239 Cal.App.4th 1461

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39
Q

When financing is obtained during marriage on an SP asset (i.e. partnership financing for an SP partnership), then the court may find ______ are CP if a _____.

A

a portion of the loan proceeds

portion of the proceeds invested in the asset were based upon community credit

Marriage of Lafkas (2015) 237 Cal.App.4th 921

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40
Q

Wife 1 does not have an interest in subsequent (albeit same world) movies/shows where ______ did not evidence she should.

A

the contractual intent

Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634

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41
Q

A copyright on a literary work produced during the marriage is as much a divisible community asset as ______.

A

the underlying artistic creation itself

Marriage of Worth (1987) 195 Cal.App.3d 768

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42
Q

Because characterization of property is determined at time of acquisition, the court can ______ under 4(h) so that a party is not deprived of certain vested property rights.

A

deviate from retroactive application

Marriage of Bouquet (1976) 16 Cal.3d 583

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43
Q

Retroactive application of division of property to transactions before 1/1/84 is an _______.

A

impermissible interference with vested property rights

Marriage of Buol (1985) 39 Cal.3d 751

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44
Q

Moore Marsden Calculation

A

SP Contribution = Down Payment + (Purchase Loan Amount - CP payments on loan)
SP % of Appreciation = SP Contribution/Purchase Price
CP % of Appreciation = CP Contribution/Purchase Price
SP Appreciation Pre Marriage = FMV @ marriage - purchase price
Appreciation @ Divorce = FMV @ divorce - FMV @ marriage
SP Take = (Down Payment + loan pmt) + SP Appreciation + (SP % X Appreciation @ divorce)
CP Take = CP Contribution + (CP % X Appreciation @ divorce)

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45
Q

When SP purchased before marriage but mortgage principal paid with CP during marriage, the community is first ______ and is entitled to a ______ in appreciation.

A

reimbursed by the amount of the principal loan reduction

pro tanto interest

Marriage of Moore (1980) 28 Cal.3d 366

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46
Q

When there has been ______ real property prior to marriage, the appreciation prior to marriage is _____.

A

significant appreciation in SP

allocated as SP

Marriage of Marsden (1982) 130 Cal.App.3d 426

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47
Q

When there is appreciation between DOS and trial, the community _______.

A

continues to share in appreciation

Marriage of Sherman (2005) 133 Cal.App.4th 795

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48
Q

You cannot get both a ________ AND and a _______ as it would be double dipping.

A

reimbursement (2640) for improvements

pro tanto interest under Moore/Marsden

Marriage of Nevai (2020) 59 Cal.App.5th 108

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49
Q

Community gains an interest under Moore/Marsden when the spouses _______.

A

refinance SP property during marriage and pay off the original mortgage with a new one

Marriage of Branco (1996) 47 Cal.App.4th 1621

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50
Q

_______ are excluded in applying Moore/Marsden to the extent the proceeds were not used to acquire or improve the property.

A

Home equity loans

Marriage of Nelson (2006) 139 Cal.App.4th 1546

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51
Q

When Moore/Marsden used in a case where one party dies after separation, the date of value is the ______ and not the date of trial.

A

date of death

Bono v. Clark (2002) 103 Cal.App.4th 1409

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52
Q

_______ can be used for commercial properties.

A

Moore/Marsden

Marriage of Frick (1986) 181 Cal.App.3d 997

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53
Q

The court only has jurisdiction to characterize property as SP or CP, and if SP ______ to and from SP.

A

order reimbursement

Marriage of Braud (1996) 45 Cal.App.4th 797

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54
Q

SP is all property owned ______.

A

before marriage
acquired during marriage by gift, bequest, devise, or descent, and
the rents, issues, and profits of said property

Fam. Code 770
Cal.Const.Art. 1 Sec. 21

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55
Q

A married person may, without the consent of the person’s spouse, ______.

A

convey the person’s separate property

Fam. Code 770(b)

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56
Q

Except as otherwise provided by statute, neither spouse has an interest in the ______.

A

separate property of the other

Fam. Code 752

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57
Q

Notwithstanding 752, neither spouse may be excluded from the ______.

A

other’s dwelling

Fam. Code 753

58
Q

Genetic material for which no other person has contributed (i.e. sperm) should be disposed of based upon ______.

A

the intent of the donor, even if donated during marriage

Estate of Kievernagel (2008) 166 Cal.App.4th 1024

59
Q

Court has jurisdiction to divide the SP interest in property held as ______, at the request of either party.

A

joint tenants or tenants in common

Fam. Code 2650

60
Q

All earnings and accumulations of a spouse, and the minor children living with that spouse or in the custody of that spouse, are _____.

A

the separate property of the spouse

Fam. Code 771

61
Q

Earnings and accumulations of ______ as outlined in 6750 remain the sole legal property of the minor.

A

an unemancipated minor

Fam. Code 771(b)

62
Q

Contracts where a minor is employed to render artistic or creative services, contracts involving intellectual property and likeness, or participant or player in a sport cannot be _____ if approved by the court.

A

disaffirmed solely on the grounds that the party is a minor

Fam. Code 6750 and 6751

63
Q

Absent an agreement, use of separate property to meet community living expenses is _____.

A

a gift to the community

See v. See (1966) 64 Cal.2d 778

64
Q

Where funds are paid from a commingled account, it is _____.

A

presumed CP

Marriage of Higinbotham (1988) 203 Cal.App.3d 322

65
Q

SP does not lose its status in a commingled account so long as it can be ______.

A

traced back to a separate source

Marriage of Braud (1996) 45 Cal.App.4th 797

66
Q

Spouse claiming separate property bears _____.

A

burden of tracing

See v. See (1966) 64 Cal.2d 778

67
Q

Direct tracing requires documentary proof that sufficient _____ AND that the spouse making the purchase intended ______.

A

SP funds were available in the account at the time of purchase

to use separate, rather than community, funds

Marriage of Mix (1975) 14 Cal.3d 604

68
Q

A spouse may trace the source of property to separate funds with evidence that community expenses _____.

A

exceeded community income at the time of acquisition

See v. See (1966) 64 Cal.2d 778

69
Q

When both SP and CP funds are available, there is no presumption that _____.

A

spouse used SP to pay expenses of the community

Estate of Cudworth (1901) 133 Cal.462

70
Q

Tracing requires documentary evidence because CA Supreme Court stated the owner of SP has the burden of ______.

A

keeping records establishing CP was exhausted

Marriage of McLain (2017) 7 Cal.app.5th 262

71
Q

The court is not bound to “direct” or “exhaustive” tracing so long as _____. The courts have the flexibility to evaluate ______.

A

the evidence is credible

alternative tracing methods

Marriage of Ciprari (2019) 32 Cal.App.5th 83

72
Q

The need for specific record tracing arises when there is a ______. For _____, the credible testimony of a party can establish the SP interest in the account.

A

commingled account

non‐commingled accounts

Marriage of Ficke (2013) 217 Cal.App.4th 10

73
Q

Unless a party has made a written waiver of right to reimbursement or signed a writing with the same effect, the party shall be reimbursed for the party’s _______ of the community to the extent the contributions can be traced to a separate source. The amount reimbursed shall be _______ at the time of the division.

A

contribution to the acquisition of property (down payments, improvements, principal payments)

without interest and may not exceed the net value of the property

Fam. Code 2640(b)

74
Q

The right to reimbursement does not ______ of the property.

A

alter the character

Marriage of Camire (1980) 105 Cal.App.3d 859

75
Q

The reimbursement allows tracing to subsequently acquired assets using _____. Even if the community contributes to DIPS but the equity is less than the original SP contribution, _____.

A

the original asset at issue

the SP contribution is given greater protection from depreciation than the community’s interest

Marriage of Walrath (1998) 17 Cal.4th 907

76
Q

The court may order reimbursement to the community for payment on _____ where the spouse owning SP _____.

A

taxes and mortgage payments of SP

misappropriated the CP funds

Marriage of Walter (1976) 57 Cal.App.3d 802

77
Q

Consent to use CP to contribute to SP does not raise ______.

A

a presumption it is a gift

Marriage of Allen (2002) 96 Cal.App.4th 497

78
Q

A party shall be reimbursed for the party’s separate contributions to the acquisition of property of the other spouses’ separate property during the marriage, unless there has been ______.

A

a transmutation in writing or a waiver of reimbursement

Fam. Code 2640(c)

79
Q

The community shall be reimbursed for community contributions to education or training of a party that _______, with interest at the legal rate UNLESS the community has _____.

A

substantially enhances the earning capacity of a party

substantially benefited from the education or training (rebuttable presumption is 10 years)

Fam. Code 2641(a) & (c)

80
Q

To find that a degree (i.e. law) alone has resulted in a substantial earning capacity is _____.

A

too speculative

Marriage of Graham (2003) 109 Cal.App.4th 1321

81
Q

Any outstanding educational loan upon dissolution of marriage shall be ______

A

assigned to the party who incurred it.

Fam. Code 2641(b)(2)

82
Q

Retroactive use of reimbursement absent an agreement, written or oral, that the parties intended for H’s contribution to remain SP is ______

A

improper as it would violate the parties’ legitimate expectations at the time of the contribution and would impair W’s vested property interest.

Marriage of Fabian (1986) 41 Cal.3d 440

83
Q

Reimbursement for contribution of separate property to community property applies only to property acquired _____.

A

on or after January 1, 1984

Marriage of Heikes (1995) 10 Cal.4th 1211

84
Q

Spouse may be reimbursed for SP payments made to _____.

A

preserve and maintain CP assets (i.e. mortgage on a home) post-separation but prior to trial

Marriage of Epstein (1979) 24 Cal.3d 76

85
Q

Spouse may be _____ value of the exclusive use of a CP asset.

A

charged for the reasonable

Marriage of Watts (1985) 171 Cal.App.3d 366

86
Q

Watts may be charged even if _____.

A

the community only has an interest in the home i.e. Moore/Marsden, even if the property itself is not community

Marriage of Mohler (2020) 47 Cal.App.5th 788

87
Q

_____ is generally guidepost to determine use to be charged for Watts. If the out spouse is also paying the mortgage, they may be entitled to ______.

A

“Reasonable rental value”

both Epstein and Watts

Marriage of Jeffries (1991) 228 Cal.App.3d 548

88
Q

A spouse’s criminal conduct which directly causes forfeiture of an asset (i.e. loss of pension), the court may find ______.

A

the community is entitled to reimbursement for the loss

Marriage of Beltran (1986) 183 Cal.app.3d 292

89
Q

A spouse embezzling from an employer resulting in loss to the community may result in _____.

A

a reimbursement to the community for the loss

Marriage of Stitt (1983) 147 Cal.app.3d 579

90
Q

When a spouse transfers community property to satisfy a separate debt, the community ______.

A

is entitled to a reimbursement

Marriage of Lister (1984) 152 Cal.App.3d 411

91
Q

An adult child shall, to the extent of the adult child’s ability, support a parent who _____.

A

is in need and unable to self-maintain by work

Fam. Code 4400

92
Q

A child’s support of a parent, who is unable to self-maintain by work, is a “debt” of the party as outlined in Fam. Code 910 (not a gift) and therefore, ______.

A

payments to support a parent will not be reimbursed to the community

Marriage of Leni (2006) 144 Cal.App.4th 1087

93
Q

______ may bring an action for an adult child to pay support.

A

A parent or the county

Fam. Code 4403

94
Q

Community is liable for debt of either party incurred ______.

A

before or during marriage and prior to separation

Fam. Code 910

95
Q

The liability extends even if incurred by one spouse alone exclusively ______.

A

for that spouse’s benefit

Lezine v. Security Pacific Financial (1996) 14 Cal.4th 56

96
Q

One spouse’s earnings during marriage may be protected from liability of another spouse’s SP debt if the earnings are kept separate, ______.

A

in a non-commingled account where the debtor spouse has no access

Fam. Code 911

97
Q

A spouse’s SP is liable for debt incurred by that spouse before or during marriage BUT a spouse’s SP is not liable for the other spouse’s SP debts incurred before or during marriage, except otherwise provided by statute. One spouse’s consent to encumber CP to secure the other spouse’s debt does _______ unless they also incurred the debt.

A

not subject the consenting spouse’s SP to liability

Fam. Code 913

98
Q

Spouses are personally liable for debts incurred by the other spouses for ______ before separation, except as provided in Fam. Code 4302.

A

“necessaries of life”

Fam. Code 914(a)

99
Q

A person is not liable for support of the person’s spouse when the person ______ unless support is stipulated in the agreement.

A

is living separate from the spouse by agreement

Fam. Code 4302

100
Q

If one spouse’s SP is applied to pay the other spouse’s debts under 914(a) when either CP or the SP of the first spouse was available, the ______.

A

payor spouse is entitled to a reimbursement

Fam. Code 914(b)

101
Q

When CS or SS is paid with CP to a prior relationship when SP funds were available, ______.

A

the community is entitled to reimbursement

Fam. Code 915

102
Q

A spouse remains liable to creditors for that spouse’s own debts, even if judgment requires the other to pay it; however the other spouse will _______.

A

owe reimbursement to the first if ordered to pay it under the judgment

Fam. Code 916

103
Q

It was error for the court to enter judgment against W by the hospital creditor where the debt was incurred by H and was not _____.

A

assigned to her in the judgment

CMRE Financial Services, Inc. v. Parton (2010) 184 Cal.App.4th 263

104
Q

A right of reimbursement for debts paid (910-916) must be made the earlier of ______.

A

(1) within 3 years after the spouse in whose favor the arises as actual knowledge of the application of property to satisfy the debt or
(2) in proceeding for division of community and quasi-community property or in proceedings upon the death of a spouse

Fam. Code 920

105
Q

A married person is not liable for any injury or damage caused by the other spouse except in cases where _____.

A

the married person would be liable therefore if the marriage did not exist

Fam. Code 1000(a)

106
Q

If liability is based upon an act or omission which occurred while acting for the benefit of the community, the liability shall first be satisfied ______.

A

by the community, then the actor

Fam. Code 1000(b)(1)

107
Q

If the liability is based upon an an or omission which occurred while NOT acting for the benefit of the community, the liability shall be satisfied by _______.

A

the separate property of the actor, then the community

Fam. Code 1000(b)(2)

108
Q

This does not apply to liability that is satisfied by ______. Right of reimbursement shall be exercised no more than ____ after the spouse in whose favor the right arises has actual knowledge of the application of property to satisfy the debt.

A

insurance proceeds

seven years

Fam. Code 1000(c)

109
Q

Debts incurred prior to marriage are confirmed without offset ____.

A

to the spouse who incurred the debt

Fam. Code 2621

110
Q

Debts incurred during marriage and prior to separation shall be divided pursuant to 2550 EXCEPT _____. In that case, the court shall assign the debt as the court deems _____, taking into account factors such as the parties’ relative ability to pay.

A

where there is a negative community estate

just and equitable

Fam. Code 2622

111
Q

It was proper for the court to assign more debts to H in a negative estate where H had ____.

A

a greater background in business and greater ability to pay debts in excess of assets

Marriage of Vanderbeek (1986) 177 Cal.App.3d 224

112
Q

Debts incurred after separation but before entry of judgment shall be confirmed as follows: ______

A

(1) debts incurred for common necessaries shall be confirmed based upon respective needs and abilities to pay at the time the debt was incurred; and
(2) debts incurred for non necessaries shall be conformed to the spouse who incurred without offset.

Fam. Code 2623

113
Q

Where one spouse requires support, the court has discretion to allow the spouse to use a reasonable amount of community funds for support without ______.

A

being charged for the funds used between separation and issuance of support

Marriage of Stallworth (1987) 192 Cal.App.3d 742

114
Q

Debts incurred after entry of judgment but before termination of marital status or after entry of legal separation shall be confirmed without offset to _______.

A

the spouse who incurred the debt

Fam. Code 2624

115
Q

All separate debts are confirmed without offset to the _____.

A

spouse who incurred the debt

Fam. Code 2625

116
Q

The court has jurisdiction to order reimbursement in cases it deems appropriate for debts paid ______

A

after separation but before trial

Fam. Code 2626

117
Q

Except as provided by statute, evidence of specific acts of misconduct is ______.

A

improper and inadmissible

Fam. Code 2335

118
Q

In transactions between themselves, spouses are subject to the general rules governing fiduciary relationships, and neither shall take advantage of the other. This confidential relationship imposes a _____, and subject to the same rights and duties as provided in Corp. Code 16403, 16404, and 16503 including: _____

A

duty of the highest good faith and fair dealing

(1) access to books kept regarding a transaction for purposes of inspection and copying;
(2) upon request, rendering true and full information of all things affecting any transaction that concerns CP; and
(3) accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other that concerns CP.

Fam. Code 721(b)

119
Q

A spouse must provide, without demand, any information concerning the CP’s business and affairs reasonably required for the ______ under the partnership agreement or this chapter.

A

proper exercise of the spouse’s rights and duties

Corp. Code 16403(c)(1)

120
Q

A spouse must provide, on demand, any other information concerning CP business and affairs, except to the extent the demand or information demanded is _____.

A

unreasonable or otherwise improper under the circumstances

Corp. Code 16403(c)(2)

121
Q

Either spouse has the _____ of the community personal property.

A

management and control

Fam. Code 1100(a)

122
Q

A spouse may not make a gift of a community personal property, or dispose of community personal property for ______, without the written consent of the other spouse.

A

less than fair and reasonable value

Fam. Code 1100(b)

123
Q

A spouse may not _______ community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse.

A

sell, convey, or encumber

Fam. Code 1100(c)

124
Q

A spouse who is operating or managing a business or an interest in a business that is all or substantially all community personal property has the primary management and control of the business, and may act alone in all transactions but shall _____.

A

give prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the operation of the business

Fam. Code 1100(d)

125
Q

Each spouse shall act with respect to the other spouse in accordance with the general rules governing fiduciary relationships as specified in 721, until such time as the assets and liabilities have been divided by the parties or by a court including: ______

A

(1) full disclosure of all material facts and information of all assets/debts that may have or have a community interest; and
(2) provide equal access to all information, records, and books that pertain to the value and character.

Fam. Code 1100(e)

126
Q

Remedies for breach of fiduciary duty shall include, but not limited to, an award to the other spouse of _____ of an undisclosed or transferred asset plus attorney’s fees and costs. When the breach falls within Civil Code 3294, an award of _____ of the asset and or value is appropriate.

A

50 percent

100 percent

Fam. Code 1101(g) and (h)

127
Q

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover ______.

A

damages for the sake of example and by way of punishing the defendant

Civ. Code 3294

128
Q

A court may (1) order an account of the ________; and (2) determine the rights of ownership in, the beneficial enjoyment of, or access to, community property.

A

property and obligations of the parties to a marriage

Fam. Code 1101(b)

129
Q

A court may order that title be ______ a property’s community character.

A

modified to reflect

Fam. Code 1101(c)

130
Q

Any action shall be commenced within ____ of the date of actual knowledge without filing a disso OR by death or in conjunction with a disso within the 3 year limit. The defense of _____ may be raised.

A

three (3) years

laches

Fam. Code 1101(d) and (f)

131
Q

Once non-managing spouse makes prima facie showing of existence and value of CP assets in control of other spouse post-separation, the burden of proof ______. Otherwise, the managing spouse should be charged with the assets ______.

A

shifts to the managing spouse to prove proper disposition of assets

according to the prima facie evidence

Marriage of Margulis (2011) 198 Cal.App.4th 1252

132
Q

Husband was properly charged with the increased value of stocks that he _________.

A

sold in violation of the ATROs

Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090

133
Q

H’s bad loan made over W’s objection was ______.

A

property awarded to H without offset

Marriage of Quay (1993) 18 Cal.App.4th 961

134
Q

It was improper for the court to award remedy under 1101 for ______ HOWEVER, it was proper to ______.

A

failure to disclose an SP asset

sanction under 2107 for nondisclosure

Marriage of Schleich (2017) 8 Cal.App.5th 267

135
Q

H’s transfer of $8.1M to brokerage account to invest without W’s consent (she only agreed to $2.5M) and his “grossly negligent” mismanagement in trading was a breach of fiduciary duty, and the court awarded the ½ of the loss excluding the 2.5M to W. Court determined that the legislature rejected the interpretation that 1101(g) required the highest value either at the date of breach, date of sale, or date of award.

A

Marriage of Kamgar (2017) 18 Cal.App.5th 136

136
Q

Fiduciary duties continue _____ and the management spouse must reveal ______ in the community estate. One success and one failure of an asset (here bitcoins) cannot be “offset” by one another.

A

post-separation

any material changes

Marriage of DeSouza (2020) 54 Cal.App.5th 25

137
Q

Separate actions for torts between spouses are _____.

A

disfavored and generally excluded

Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131

138
Q

Separate tort actions includes actions against _____.

A

other professionals who represented the other spouse

Burkle v. Burkle (2006) 144 Cal.App.4th 387

139
Q

Court may award the amount the court determines to have been _____.

A

deliberately misappropriated by the party

Fam. Code 2602

140
Q

Court ordered husband to reimburse the community for community funds spent on ______.

A

husband’s girlfriend (from the community business)

Marriage of Czapar (1991) 232 Cal.App.3d 1308

141
Q

From separation to date of distribution (or judgment for support/fees), the parties are subject to the standards in 721 as to all assets and liabilities that affect the other party. This includes all issues relating to _____.

A

support and fees including information regarding income and expenses

Fam. Code 2102

142
Q

The mandatory disclosure requirement contains NO exception for _____.

A

debts and assets that offset each other

Marriage of Feldman (2007) 153 Cal.App.4th 1470

143
Q

Entry of permanent order judgment cause ______.

A

duty of disclosure to end

Marriage of Sorge (2012) 202 Cal.App.4th 626

144
Q

Each party to a proceeding for dissolution shall serve on the other a preliminary declaration of disclosure under 2104, unless waived under 2107 or is not required pursuant to 2110, and a final declaration of disclosure unless waived under 2105 or 2110.

A

Fam. Code 2103

145
Q

Each party shall serve on the other a preliminary declaration of disclosure, which shall include: (1) all tax returns filed within the last 2 years; (2) all assets and liabilities whether CP, quasi-CP, or SP; and (3) a completed income and expense declaration within 60 days of petition if Petitioner and within 60 days of filing response.

A

Fam. Code 2104

146
Q

Before or at the time the parties enter into an agreement or _____, each party shall serve on the other a final declaration of disclosure and a current income and expense declaration, and must also include (1) all material facts and information regarding characterization of assets/debts; (2) all material facts and information regarding value of assets contended to be CP; (3) all material facts and information regarding amounts of obligations that are contended CP; and (4) all material facts and information regarding earnings and expenses.

A

no later than 45 days before the first date of trial

Fam. Code 2105

147
Q

In making an order setting aside Judgment for failure to comply with disclosures, the court may _____.

A

limit the set aside to those portions of the judgment that are materially affected by the nondisclosure

Fam. Code 2105(c)

148
Q

If a party fails to serve complete PDD or FDD, the complying party may make a request. If the non complying party fails to comply with the request, the complying party may: ______

A

(1) file a motion to compel further response;
(2) file a motion to prevent non complying party from presenting evidence on issues that should have been covered; or
(3) file a motion granting complying party’s voluntary waiver of disclosure.

Fam. Code 2107

149
Q

If a party fails to comply, the court shall order ____ unless it finds the party acted with substantial justification or other circumstances that make imposition unjust.

A

monetary sanctions

Fam. Code 2107(c)

150
Q

The failure to comply with disclosure requirements does not _____ and the court must set aside a judgment if the disclosure requirements were not met.

A

constitute “harmless error”

Fam. Code 2107(d)

151
Q

The court found that 2107(d) conflicts with the Constitution and found that before it can apply, the proponent must identify some portion of the judgment _____.

A

materially affected by the nondisclosure

Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519

152
Q

In the case of a default judgment, the petitioner may waive the final disclosures requirements and shall not be required to serve final disclosures however, a preliminary disclosure is required unless _____.

A

petitioner served summons and petition by publication or posting

Fam. Code 2110

153
Q

Any transfer of property between spouses during marriage or any transfer of property between spouses (or former spouses if it is incident to a divorce) is ___. No gain or loss is recognized, and for income tax purposes, the transferor’s basis and holding period in the property is the ____. Does not apply if one spouse is a _____.

A

tax-free

adjusted basis and holding period of the transferor

nonresident alien or it is a transfer of services

IRC 1041

154
Q

Incident to Divorce means

A

(1) The transfer occurs within one year after the divorce; OR
(2) The transfer is pursuant to the divorce decree AND the transfer occurs not more than six years after the divorce.

155
Q

Gross income shall not include gain from the sale or exchange of property if, ______, such property has been owned and used by the taxpayer as the taxpayer’s principal residence for periods _____.

A

during the 5-year period ending on the date of the sale or exchange

aggregating 2 years or more

IRC 121(a)

156
Q

If single, exclusion up to ____. If joint return for taxable year of sale or exchange, then up to _____ exclusion. This applies even if ____.

A

$250,000

$500,000

only one spouse is using home as principal residence

IRC 121(b)

157
Q

There shall be allowed as a deduction all interest paid or accrued within _____.

A

the taxable year on indebtedness

IRC 163

158
Q

When transferor retains no reversionary interest and has no direct or indirect ability to affect the value of the rights transferred, the _____ of the rights assigned because there is no “anticipatory assignment.”

A

transferee is liable for the taxes

Meisner v. U.S (1998) 133 F.3d 654

159
Q

Outlines a party’s ability to retain tenants in common ownership without being deemed a “partnership.”

A

Rev. Proc. 2002-22

160
Q

Joint _____ may be revised by a court in a proceeding for dissolution, provided the requirements of California Revenue and Taxation Code (RTC) 19006 are met.

A

California income tax liabilities

Fam. Code 2628

161
Q

RTC 19006 Requirements

A

(1) order revising tax liability may not relieve a spouse on income earned by or subject to exclusive management and control of that spouse;
(2) must separately state income tax liabilities for the taxable years which revision is granted;
(2) shall not revise tax liability that has been fully paid prior to the effective date of the order;
(3) shall become effective when FTB is served or acknowledges receipt of order;
(4) shall not be effective if gross income exceeds on the return exceeds $150k or tax liability exceeds $7,500 unless a tax revision certificate is obtained by FTB and filed with court.

CFLS (16 decks)

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