Marital Property

Question 1

Year that husband stopped having sole control over property during the marriage

Answer 1

1975

Question 2

Death when intestate (no will) in CP state

Answer 2

Right to 100% CP, and at least 1/3 SP, depending if other heirs

Question 3

Death when intestate (no will) in SP state

Answer 3

1/3 of all decedent’s estate, depending if there other heirs

Question 4

Death when testate (will) CP state

Answer 4

Half of CP (that spouse’s share of CP), each spouse can will away their half of CP, and no right to spouse’s SP

Question 5

Death when testate (will) in SP state

Answer 5

Surviving spouse can take what is set forth in the will or elect to take a 1/3 forced share of decedent’s estate

Question 6

Division at divorce in SP state

Answer 6

equitible factors, may consider labor contribution, gift, or inheritance

during marriage if it’s yours, it’s yours. at end of marriage divide everything up based on what;s fair

presumptive 50/50 division of poperty acquired during marraige, but judge can award more or less based on equitible facts

can also reach SP

Question 7

division at divorce in CP state

Answer 7

division of ALL CP not SP

mandatory 50-50 division

exceptions: breach of fiduciary duty

Question 8

Community property definition

Answer 8

All property, real or personal, wherever situation, acquired by a married person, during the marriage, while domiciled in the state

Question 9

Onerous Title

Answer 9

exchange for labor, CP

Question 10

Lucrative title

Answer 10

not in exchange for labo, SP
title over something recieved by gift, etc

Question 11

characterization of rents and profits?

Answer 11

If the asset is a SP asset, the rents and profits are also SP, subject to reimbursement if there is a CP contribution to the SP

Question 12

if someone is recieving settlement during marriage, if claim was about inheritance, what’s its character?

Answer 12

SP

Question 13

Quasi CP?

Answer 13

Property that would have been CP had married parties been domiciled in CA at time of acquisition

at divorce, court will treat it as if CP

Question 14

Quasi MP?

Answer 14

as if married… happens if couple does not have legally valid marriage, but at least 1 spouse qualifies for putative spouse status

Question 15

Tracing

Answer 15

the source of the funds controls the characterization of the property

general presumption that property acquired during marriage is CP, but can be rebutted by tracing to SP

ways to prove SP – testimony of person who gave gift, bill of sale, photos, etc

tracing works for all property EXCEPT jointly titled property under the CP title presumption. only agreement rebuts it

Question 16

tracing untitled property to mixed sources

Answer 16

apportion it

Question 17

Retirement pensions - CP?

Answer 17

CP to the extent that the right to the benefit was earned during marriage

matters when the benefit was earned not when paid out

Question 18

Immediate distribution vs deferred distribution

Answer 18

immediate: opt for it at divorce, applies to present value of the pension

deferred: wait until pension received by employee spouse, applies to benefits actually received

Question 19

Enforcement of distributions

Answer 19

if employee does not retire when eligible, non employee has a right to recieve his CP share of beenfits as soon as employee spouse is eligible to retire

If employee spouse chooses not to retire, must still pay non-employee spouse the CP share

The court may order a private employer to pay the non-employee spouse her/his share of the benefits

The court may not order a public employer to pay benefits directly to the non-employee spouse, but instead may issue an order (Gillmore order) against the employee spouse to pay the non-employee spouse

Question 20

time rule

Answer 20

used to calculate value of pensione earned both during marriage and after marriage

formula: years employed during marriage / years working

find that rate, then multiply it by the immediate distribution present value or defferend distribution monthly payment

only use there where the total number of years served by employee spouse is a substantial factor in computing amount of retirement beenfits

Question 21

unvested pensions

Answer 21

if employee spouse has not completed a minimum number of working years so the pension has not yet vested

unvested pension is still sp

Question 22

Stock options

Answer 22

if employee has an option to purchase stock at below market price, exercisable on specified dates if he is still working with the company:

stock options exercised while employee spouse is married –> CP

stock options exercised after divorce –> might be part CP/part SP to the extent the right to exercise the stock option was based on employment during the marriage

court can apportion using the time rule

Question 23

reinstated pensions

Answer 23

employee-spouse quits and accepts a cash settlement in lieu of future pension rights, then returns to same employer and wants to reinstate pension plan; employer allows this but requires employee to make cash contribution to trigger reinstatement

right to reinstate is an economic right. extent that it was earned during marriage it is a CP asset

if employee spouse exercises this right, nonemployee spouse has 1/2 CP right to recieve a share of the reinstated pension, but must pay her/his share of reinstatement fee

Question 24

early retirement

Answer 24

non employee spouse has cp share of actual retirement benefits when the employee spouse retires

where employee spouse takes early retiremeny and obtains enhancement of retirement beenfits, non employee spouse has CP share of retirement beenfits and of enhancement to extent eligibility for enhancement was earned during marriage

Question 25

disability benefits and employee contract

Answer 25

1. To determine character of disability, ask what is the disability pay replacing?

a. If disability pay is intended to replace marital earnings, it is CP
b. To the extent it is intended to replace post-divorce earnings, it is S

2. If employee spouse is eligible for retirement benefits but chooses disability pay instead, the disability pay is treated as CP to the extent it replaced a CP interest in retirement benefits employee spouse could have taken.

a. Marriage of Stenquist: H injured and could take retirement from the army at 65% of his current salary or disability at 75%. H chose disability. 10% difference = SP; the remainder = CP (subject to the time rule

3. If disability pay extends beyond normal retirement age, it is CP to the extent that it was earned during marriage or purchased with CP funds

Question 26

terminable interest doctrine

Answer 26

n/a in CA

1. Under this doctrine, non-employee spouse CP interest in the employee spouse’s retirement benefits ends with the non-employee spouse’s death (i.e., it “goes back into the pot” of the surviving employee spouse’s retirement plan) BUT THIS IS NOT THE CASE IN CA ANYMORE!
2. CA abolished in 1986

a. If B dies before A, B’s estate includes B’s ½ share of CP of A’s pension
b. Divorced non-employee spouse may will away her CP interest
c. Divorced non-employee spouse may assert her CP interest in any benefit generated by community labor
d. Even when the marriage persists until death, the estate of the deceased employee spouse may not will away the non-employee spouse’s CP share

Question 27

ERISA restrictions and QDRO

Answer 27

ERISA: individuals covered by ERISA-governed retirement plans cannot assign or transfer their retirement benefits to someone else. The purpose of this restriction is to safeguard the intended beneficiaries’ rights and ensure that retirement benefits are used for their intended purpose—providing financial security during retirement

fundamental protections provided by ERISA

REA
a. Federal law enacted by Congress to address issues related to retirement benefits, particularly in the context of divorce
i. Act aimed to ensure fair treatment of spouses, particularly non-working or lower-earning spouses, in the division of retirement assets
ii. It allows divorce-related state law property and support distribution to an alternate payee pursuant to a qualified domestic relations order (QDRO)

3. An alternate payee may be a spouse, former spouse, child, or other dependent of the pension holder. The Retirement Equity Act provides that the ERISA restrictions do not apply to a QDRO

Question 28

transmutation

Answer 28

the character of property can be changed, both parties have to agree. this is changing the character, not necessarily the property

can happen in 2 ways

a. Pre-marital/Ante-Nuptial Agreements: Couple can agree to opt out of the CP system and agree to preserve as separate property their earnings during marriage and not to make any CP claims against the other’s estate at time of death

b. Agreements made during marriage: “transmutation” because the property originally has one character and is transmuted by agreement to take on another character

Question 29

pre 1985 transmutation

Answer 29

Before 1985, transmutations could be informal, no writing requirement

EXCEPTION: JT (since half of JT can’t be willed away)
right of survivorship. so writing always required for transmutation of CP/SP to JT

however, before 1985 just saying “our house” not enough

transmutation may be proved “by the acts of the parties and their conduct in dealing with the property.” No express or formal agreement is required if it may be fairly inferred from evidence CP intended. H owned SP and W managed it. Filed income from hotel jointly (only CP could be on joint return at time). Property transmuted to CP

Note: for purposes of death, is H putting title in W’s name alone for a house sufficient to transmute Cp to W’s SP? Title could be deemed evidence of an agreement to transmute to W’s SP

Question 30

post 1985 transmutation

Answer 30

must be in writing! by an express written declaration
can be with or without consideration, only between spouses, subject to law of fraudulent trannsfer

no exceptions to this!

Need something more concrete like “I, wife, waive my right to any CP that may be contained in the IRA” or “I, wife, agree that any CP contained in the IRA be changed to husband’s SP”

Not effective as to 3rd party without notice unless recorded

The transmutation must be recorded, can’t portray it as SP to a 3rd party unless it’s recorded

not applicable to gifts of clothes, jewlery, tangibles
a. Using CP to buy gift for spouse becomes spouse’s SP, no need for declaration since it’s a gift (unless value of gift is grossly out of proportion to your standard of living, then need a writing to transmute CP to SP)

b. “Tangibles” ≠ car (Marriage of Buie where H bought a Porsche in his own name with W’s SP and called it a gift…not valid transmutation to HSP. Still CP unless written agreement)

Date of transmutation is important, not date of acquisition

Question 31

express declaration

Answer 31

not satisfied unless writing contains language which expressly states change in characterization or ownership being made

transmutation not enough

intent and extrinsic evidence not considered

Just putting the title in one spouse’s name does not satisfy the express declaration requirement… Unless the language includes “as W’s separate property” when H waiving his right

trust had language “any SP transferred into trust is CP unless identified as SP.” But this language wasn’t explicit enough to transmute SP to CP, didn’t say SP would become or be changed into CP

H bought life insurance policy and paid in full upfront (100% CP), named W as the “owner” of the policy. At divorce, wasn’t enough to satisfy express declaration
i. Rule: if H & W acquire property with CP and agree that it is to be W’s SP, they must put the asset in W’s name and add language like “as her separate property” or “sole and separate property”

Question 32

in re brace

Answer 32

H & W acquired property with CP funds and took title as joint tenants. H filed for bankruptcy, argument that since they were JTs the property was SP for each, so creditors couldn’t reach to W’s property.
i. Rule: taking title as JT on property using community funds after 1/1/85 is not sufficient by itself to transmute CP into SP
1. Between 1/1/1975 – 12/31/1984: insufficient by itself, but a court may consider oral agreements/understandings between spouses
2. Before 1/1/1975: JT property acquired with community funds before 1/1/75 is presumptively SP

Question 33

statements in a will and transmutation

Answer 33

Since a will only becomes effective at death, a statement in a will that attempts to change the character of the property is not admissible as an express declaration before death of the testator

Hypo: H owns stock as SP but describes them as CP in his will. Not a valid express declaration for transmutation

No conditional/temporary transmutation: can’t say transmute on death only and not on divorce. Once it’s transmuted, can’t reverse unless new express agreement

Question 34

evidentiary presumptions

Answer 34

• Presumption is not evidence; once there is certain evidence, it triggers a presumption, and the burden shifts to the other party
  o Conclusive presumption: court MUST find presumption despite contrary evidence
  o Rebuttable presumption: court may hold only until sufficient contrary evidence
• Standard of proof to rebut: preponderance of evidence
  o Burden of proof is on whoever wants to show something is CP

Question 35

General presumptions

Answer 35

1. Property acquired during marriage = CP
   a. Burden of proof on party who says, “property is CP because acquired during marriage”
   i. Party must show property was acquired during marriage to trigger presumption
   b. Once A proves it is CP and triggers general presumption, burden shifts to B
   If B wants to rebut, must show that property was:
   i. Acquired from SP source, or
2. Lucrative title (gift, inheritance, bequest)
   ii. Acquired with B’s SP funds
3. Could also show asset was transmuted from CP to SP by agreement
4. Property acquired with CP funds = CP
   a. Burden of proof on party who claims property is CP because acquired with CP funds
   b. Once A proves it is CP, B can rebut by presenting evidence that parties agreed to hold the property as other than CP
   i. Ex: A makes a gift of CP to B as B’s SP

Question 36

Title presumptions

Answer 36

1. Title presumptions apply when title is understood to show an agreement of the parties (spouses) to hold as indicated in the title
   a. Title presumptions are stronger than general presumptions. Even though tracing works for general presumptions, not enough for title. Need to show agreement between parties
2. Title in 1 spouse’s name treated differently than title in both names:
   a. Both names: presumption is CP
   i. Title in one spouse’s name does NOT defeat the general presumption that property acquired during marriage is CP

b. 1 name:
i. A’s SP and has only A’s signature (“immaterial”)  title irrelevant (because no evidence of agreement), CP unless there is evidence of an agreement to transmute
1. Ex: A buys car with CP and has title state “A’s SP” = asset is still CP
ii. A’s SP and has B’s signature (“controlling”)  title presumption is A’s SP
1. Ex: B buys a car as a gift for A with CP and signs title as “A’s sole and separate property”

Question 37

How to get CP title presumption

Answer 37

To get a Community Property title presumption, governing instrument must either specify that the property is held as CP or that the co-owners are husband and wife

a. Rebuttal: with valid agreement that spouses agreed to hold the property as other than CP
i. Can’t rebut just by tracing to non-CP source of funds
ii. Compared to non-titled property, that CAN be rebutted by tracing

Question 38

Married women’s presumption

Answer 38

applies to titles taken before 1975!

1. Before 1975, only the husband could determine the title of any asset purchased with CP funds. & H had sole control & management of CP
   a. Pre-1975 acquisition held by a married woman in her name alone is presumptively her SP, whereas a pre-1975 acquisition held by a married man in his name alone is presumptively CP
2. Presumption: wife took any asset by written instrument on which her name appeared alone or with another person as her SP
   a. If only W’s name  W’s SP
   b. If W’s name + another person  W takes her part as Tenant in Common/Joint Tenant (SP)
   c. If acquired by H + W and says H & W  CP (unless different intention expressed in the instrument)

EXCEPTION:
1. Title reads: “John Doe & Jane Smith Doe, husband & wife, as TinC”
2. Title presumption: ½ is CP, and ½ is W’s SP
3. H & W have equal shares in the CP ½
4. Therefore, H owns ¼ as his CP share, and W owns ¼ as her CP share plus ½ as SP
5. Rule applies: only if title says as TinC before 1975

Question 39

What if the reinstatement fee is paid out of CP funds, does the non employee spouse still have to pay a share? This is if they are still married?

Answer 39

Dont have to be still married

Question 40

Why did JT transmutation always have to be in writing

Answer 40

If you got JT, includes right to survivorship, if you changed title from JT to CP, lose right to survivorship
Wanted it in writing to make sure knew it was intending to do it, giving away a big right

Question 41

joint tenancy presumption

Answer 41

Presumption JT = JT
JT was regarded as SP, with right of survivorship
Problem was that divorce court only had JX over CP
Court has jx over, only if it were CP, JT = cp for divorce only, then expanded to be all JTs even if not single family dwelling, then changed all JTs, tinC, all CP for purposes of divorce
If dies, true JT

Question 42

Not effective as to 3rd party without notice unless recorded

Answer 42

The transmutation must be recorded, can’t portray it as SP to a 3rd party unless it’s recorded

If youre a 3rdp, like a creditor, thinks a piece of property that has been identifies as collateral, you think it is CP, so if in order to evade creditor the couple attempt to transmute to one’s sp, have to notify 3p so he knows it is not CP, and if try to do it after the fact, still have to let him know, used as collateral
Try to collect on debt, not CP, SP, court will say not effective, need to notify, bc did not tell him was gonna try

Question 43

True title presumptions stronger than general presumptions

Answer 43

In order to be true title presumption, have to be in agreement by spouses, if one person buys asset with CP, and puts their name on it without agreement of other spouse, no benefit of title presumption
Ex. getting divorce, look its in my name as my sole and SP, court will say no, no agreement there, did it unilaterally. Once theres agreement, created true title presumption

Question 44

joint tenancy title presumption

Answer 44

At divorce, presumption of CP, each get half

At death, presumption that surviving spouse gets 100%

Question 45

Presumption of any joint title = CP for divorce — that includes JT?

Answer 45

Does now, didnt used to

Question 46

4800.2 retroactivity

Answer 46

Can only be prospectively

If SP put into CP asset before 1984, cannot retroactively have right to reimbursement

Can rebut gift by showing agreement, valid at time made, written oral express implied, could say person who put in SP gets proportionate share as SP, or is entitled to reimbursement with interest, or entitled to reimbursement without interest, whatever agreement made before 1984, valid at time made, can enforce

So before Lucas, if SP made a contribution, it was a presumption of a gift, with no right to reimbursement. And the presumption could be rebutted by any type of agreement. After Lucas, there is an automatic right to reimbursement of SP without interest

Question 47

4800.1 retroactivty

Answer 47

If valid agreement before 1984, said JT was SP, cannot be required to come up with a writing to rebut new presumption, allowed at time of divorce able to prove what agreemenet u had at time that was valid at time of divorce
Can reput JT = CP for purposes of divorce only, valid at time made,
Applying 4800.1, retroactively find, CP or impair vested right

Question 48

can you apply 4800.2 to commingled bank accounts?

Answer 48

Commingled bank account, dont apply 4800.2 to that, dont get it back. An answer that said 4800.2 applies, just wrong

Question 49

married women’s presumption when is it SP when is it CP?

Answer 49

a. If only W’s name = W’s SP

b. If W’s name + another person = W takes her part as Tenant in Common/Joint Tenant (SP)

c. If acquired by H + W and says H & W = CP (unless different intention expressed in the instrument)

Question 50

married women’s presumption TinC

Answer 50

half is wife’s SP, half is CP if its with a husband

Question 51

married women’s presumption, H and W as JT

Answer 51

JT for purposes of death, before 1965, only single family residences was JT=CP for divorce. now, any JT = CP for purposes of divorce

Question 52

married women presumption rebuttal

Answer 52

Louknisky v. Louknitsky (1954): wife used CP funds to buy a house in SP title only. But husband had no idea that she took property in her name alone. Married women’s presumption was rebutted here

Question 53

married wome

Question 54

pre 1975 = i. “J & A as CP” or “…as husband and wife”

Answer 54

CP

Question 55

pre 1975 J & A” or “…as tenants in common

Answer 55

half wife’s SP, half CP

Question 56

pre 1975 Wife and [Any Other Person]

Answer 56

wife takes her part as TinC – half SP

Question 57

pre 1975 Wife and [Any Other Person Besides Husband] as joint tenants

Answer 57

The JT is treated as a TinC
Wife’s ½ share is SP

Question 58

pre 1975 Husband and Wife [as tenants in common]

Answer 58

½ CP
½ Jane’s SP

Question 59

pre 1975 Husband and Wife as community property/as husband and wife

Answer 59

CP

Question 60

pre 1975 Husband and Wife as joint tenants

Answer 60

JT (for purposes of death)

Question 61

Husband and wife joint titles pre 1975

Answer 61

iii. “J & A, as joint tenants” = at death right of surviroship
at divorce, effective 1984, treat JT as CP

Question 62

b. TinC after 1/1/1975

Answer 62

CP

Question 63

JT title presumptions

Answer 63

JT = JT
a. During marriage: each spouse has ½ SP interest
i. Each spouse can sever their JT, thereby turning into TinC

b. At death: whole property passes to survivor
i. If JT title was never severed through marriage, dying spouse can’t will away ½ interest – bc right of survivorship

Question 64

JT 1984-87

Answer 64

property acquired during this time in JT = CP for divorce

• Can be rebutted only with clear statement in the deed or written agreement stating property not CP
  o If the transaction took place before 1/1/84, can still use W, O, E, I agreement
  o If transaction took place after 1/1/84, can only rebut with written agreement

Question 65

4800.2 as of 1984

Answer 65

4800.2 — But, as of 1984, there is a right to reimbursement of contributions to the acquisition of the property to the extent that party traces the contributions to sep property source. Right reimbursed is WITHOUT interest, so apprecations CP, split evenly

No right to reimbursement before 1984 without an agreement

Question 66

Oral agreement prior to 1984

Answer 66

Oral agreement prior to 1984 — 4800.1, cannot retroactively require written agreement for transmutation if it would substantially impair a vested property right

Question 67

1975 trigger

Answer 67

pre 1975, maritall presumption

pre 1975, men control property

Question 68

1984 trigger

Answer 68

before 1984, rebutting jt = cp at divorce, W,O,I,E
after 1984, rebutting jt = cp at divorce, written

(4800.2) (never applied retroactively)
before 1984, SP contribution to CP, no automatic right to reimbursement (presumption of a gift). could be rebutted by WOEI, with or without interest, depending on agreement

after 1984, SP contribution to CP, automatic right to reimbursement without interest, waived only in writing

Question 69

1985 triggers

Answer 69

transmutations for everything except JT
pre 1985, no writing
post 1985, writing req only

professional degrees
pre 1985, NA
post 1985, community right to reimbursement

Question 70

1986 trigger

Answer 70

PMA ss waivers
pre 1986, per se invalid
post 1986, not per se invalid

Question 71

1987 trigger

Answer 71

rebutting JT titles = CP at divorce
pre 1987, rebutting WOEI
post 1987, in writing

after 1987, all property in any joint form = CP for divorce
can only be rebutted in writing

Question 72

2005 trigger

Answer 72

SP contribution to improvement of another’s SP
pre 2005, presumption of gift
post 2005, right to reimbursement without interesy unless written waiver or transmutation agreement

Question 73

lucas facts

Answer 73

single family residence, taken by H and W as JT. JT = CP for purposes of divorce. rebutted by WOEI

JT = CP only applied to single family residence

Question 74

post lucas - 1984

Answer 74

all property H and W in JT = CP for divorce, not just single family residence

rebuttal for JT has to be inw riting

Question 75

refinancing or sale and future purchase

Answer 75

If spouse A makes SP contribution purchase CP house 1, house 1 refinanced and an equity loan used to purchase CP house 2, or house 1 sold and proceeds used to pruchase CP house 2, at divorce on or after 94, A entitled to reimbursemed for SP contribution

Question 76

apportionment

Answer 76

1. CP Payments on mortgage for SP asset
   a. A acquires SP asset before marriage with title as A’s SP
   b. During marriage, CP used to make payments; A’s SP asset increased in value
   i. Courts apportion character of asset according to relative contributions of SP and CP
   ii. Character not determined by character of initial contributions
   c. At divorce: community has right to proportionate share of property

Question 77

proportionality rule applies to

Answer 77

a. CP used to pay pre-marriage SP titled property
b. Untitled asset acquired during marriage with SP and CP funds
c. SP titled asset acquired during marriage with SP and CP
d. Jointly titled property w/ proof of spouses’ agreement to preserve proportional interests

No right to apportionment or to reimbursement for CP payment of interest/property taxes

Question 78

Apportionment keeping title as SP

Answer 78

A bought house before getting married titled in his name, 10k down + (50k loan + interest)
o Got married right after and used CP to pay towards 50k loan + interest
o Apportionment at divorce: 10k = 1/6 = H’s SP; 50k = 5/6 = CP
o Value of house 300k at divorce
 50k goes to H off the top (1/6)
 Remaining 250k is CP (1/2 for each spouse)
o Note: no reimbursement (A doesn’t just get 10k SP payment back) because the property is his SP—title is in his name & original character of property is his SP

no reimbursement, just gets the 50k off the top since 1/6 of 300 is 50

Question 79

SP title + SP and CP funds

Answer 79

o SP titled asset acquired during marriage with SP and CP; A takes title in his own name
o A buys $1000 asset with $200 SP and $800 CP
o Character of property = 20% A’s SP, 80% CP
o Character of property comes from character of funds

Question 80

Untitled Asset with SP + CP funds

Answer 80

o Asset acquired with 10% A’s SP, 15% B’s SP, and 75% CP
o Character is apportioned accordingly (since untitled; ex: bike, painting, dog)

Question 81

Changing SP title to JT/CP after 1984

Answer 81

After getting married, change title from A –> A and B as JT
o Character of property at divorce: JT = CP for purposes of divorce
o Right of reimbursement of A’s SP (original 10k)
 A gets 10k SP
 Remaining 290k is CP (1/2 for each spouse)

Question 82

Changing SP title to JT/CP before 1984

Answer 82

o Character of property at divorce is still CP, but no right of reimbursement (gift to community unless agreement otherwise)
o A doesn’t get 10k back

Question 83

CP Funds used to Improve SP
A used CP to improve his SP which increased value (ex: add a porch, renovate bathroom)

Answer 83

o No right of apportionment
o Community has right to reimbursement of amount spent (NOT increase in value of SP asset)
 Doesn’t matter whether B agreed to use CP funds to improve. There is no presumption of gift from the community  A and B each get ½ of amount spent
 But A and B can agree to waive CP right of reimbursement

Question 84

Reimbursement of SP contribution to CP

Answer 84

traced through refinancing or sale and future purchase
o If A used SP for down payment of CP house, then CP house sold to buy another house, A still entitled to reimbursement of initial SP at divorce

Question 85

A’s SP Contribution to B’s SP Asset (§2640, effective 1/1/2005)

Answer 85

o A has right of reimbursement without interest, unless written waiver of right to reimbursement or agreement of transmutation
o Before 1/1/2005: presumption of gift

Question 86

SP Funds + Joint Title = CP

Answer 86

o A uses SP to buy house for A and B taking title in JT
o Character of house = CP, not B’s SP
o Title presumption applies and cannot be rebutted by tracing to SP funds
 A by taking joint title as JT (H & W) = transmutation to CP
 Title = express declaration of him changing SP funds character to CP
 B likely agrees with the title, agreement gives title presumption controlling power

Question 87

Commingled bank account

Answer 87

1. Issues arising when the character of an asset is in dispute: acquired during marriage with funds from commingled account

a. General presumptions apply:
i. Acquired during marriage = CP
ii. Burden of proof lies with party seeking to rebut presumption
iii. Rebut general presumption by tracing to SP source

commingling presumption: if funds from commingled account were used to acquire disputed asset
a. Rebuttable presumption that funds used were CP  asset was CP
b. Burden of proof lies with party seeking to rebut presumption that CP funds were used
c. Rebut to show SP funds were actually used by showing:
i. Only SP funds were available [CP funds exhausted], or
ii. SP funds and CP funds were available but purchaser intended to use SP [contemporaneous records]

Question 88

3. Family Expense/CP Exhaustion Method