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Property > Marital Property > Flashcards

Marital Property Flashcards

1
Q

Marriage is both a (blank) and (blank) that confers legal privileges

A

Marriage is a CONTRACT and a STATUS

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2
Q

Early CL (not in effect)

  1. Right of Coverture:
  2. Right of Curtesy:
  3. Right of Downer:
A
  1. Coverture: husban had sole right to control, use and dispose of wife’s property, even if owned prior to marriage
  2. Curtesy: husband owned life estate in all wife’s real property after her death, based on issue
  3. Dower: wife owned life estate in 1/3 of husbands real property after his death, creditors and later purchasers took subject to wife’s future downer interest
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3
Q

At Marriage

Common Law:

  1. Non-marital property becomes (blank)
  2. (Blank) controls ownership

Community Property:

  1. Anything acquired before marriage becomes (blank)
  2. Anything acquired after marriage becomes (blank)
A

Common Law:

  1. Non-marital property becomes marital property
  2. Title controls ownership

Community Property:

  1. Anything acquired before marriage becomes
    * *seperate property**
  2. Anything acquired after marriage becomes marital/community property (except gifts & inheritance)
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4
Q

Homestead Act

Treats married couples as what?

Characteristics:

  1. Right of survivorship?
  2. Can Creditors reach?
  3. Individual rights: transferable?
  4. Can joint creditors reach?
  5. What happens to property acquired after marriage?
A

Homestead protection treats married couple as a tenancy by the entirety by common law.

  1. Right of survivorship: yes
  2. Creditors can’t reach
  3. Individual rights not transferable
  4. Joint creditors can reach but may have trouble reaching homestead estate!
    (Point to take away: it is WISE to get the signature of both the husband and the wife!)
  5. Property acquired after marriage = community property except for gifts/inheritances acquired by one or the other after marriage
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5
Q

At Divorce

Common law (seperate):

  1. Individual’s non-marital property?
  2. Division of marital property?

Community:

  1. Individual’s non-marital property?
  2. Division of community property?
  3. What possibilities does court consider?
A

Common Law (seperate)

  1. Allows each spouse to retain his/her property earned both prior to and during marriage and each spouse remains individually liable for prior debts.
  2. Division of marital property: 50/50

Community Property

  1. Allows each person to retain separate ownership of property acquired before marriage, and property acquired during marriage by gift or inheritance.
  2. Division of community property (50/50)
  3. Courts may also consider “ability to make future income, blah, blah, blah” – modern law trend is to move away from fault
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6
Q

Common Law Rights (Seperate)
v.
Community Property Rights

  1. Colorado = CL or Community?
  2. Issue of transmutation → property can be acquired after the marriage and can be considered……….
  3. Taking against the will
A
  1. Colorado = CL jurisdiction!
  2. Issue of transmutation → property can be acquired after the marriage and can be retained individually and be not considered marital property (CL) or community property BUT can be transmuted into marital/community property

(how?)

  1. Taking against the will
    ➢ Surviving spouse can elect to take his/her statutory share against the will (usually ½ or a 1/3 in fee simple) BUT creditors will come! (hence life insurance, hence tenants in entirety hence homestead protection laws)
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7
Q

What is the general trend concerning possession after divorce?

How is premarital property divided?

How is non-community property divided?

A

General trend = no fault divorce

Pre-Marital Property
• Everyone keeps their pre-marital property
• Everyone walks away with non-community separate property

Non-Community Property
• All non-community property acquired before you get to keep.
• Non-community property acquired during marriage will be treated with “equitable distributional”

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8
Q

What is transmutation?

A

When separate property becomes marital property

Agreements to transmute community property into separate property and vice versa is generally allowed.

Couples may do this by a valid premarital agreement or by contract during marriage.

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9
Q

Prenuptial Contracts

How does the court treat them

What are common issues

A

Court heavily scrutinizes them for policy violations

Dependant on laws in specific state

Treated under tradition contract law

They’ll be scrutinized for failure to disclose, duress, unconscionability, etc

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10
Q

Postnuptial Contracts.

What are they, when do you sign?

What is alimony? Child Support? Custody?

A

Postnuptial contracts create legally enforced requirements in the husband/wife.

Alimony is an equitable reward by judge to get both spouses back on their feet

Child support: both parties have an obligation, usually until the child is 18, usually based on income

Custody: no longer presumption that mother will get custody, now it is for “best interest of the child”

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11
Q

At death, under Common Law (Seperate), what does surviving spouse get and what happens to decedent’s property?

A

Surviving spouse retains indiv titled property + ALL decedent’s property goes to estate

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12
Q

Under Community Property view, what does surviving spouse get?

What does surviving spouse get?

What happens if spouse dies intestate?

A

Surviving spouse retains individual separate property + ½ of community property

If spouse dies intestate → the other spouse retains all individual property owned prior to marriage

Elective statutory share: if not happy with what the deceased left them in their will, the spouse may still take an “elective statutory share”
(only if the decedent spouse leaves a will –
“I’m electing to take against the will”)

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13
Q

Intestate Succession:
State intestacy statute enforced if no will

  1. What hapens when surviving spouse but no children or parents?
  2. Surviving spouse and partents but no children?
  3. Surviving spouse and children?
  4. No surviving relatives of any kind?
A
  1. Surviving spouse but no children or parents – entire estate goes to spouse
  2. Surviving spouse and parents but no children – some states give all to spouse while others require sharing
  3. Surviving spouse and children – some states give all to spouse while others require sharing
  4. No surviving relatives of any kind –
    goes to state = “escheat”
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14
Q

Unmarried Couples

  1. Common law marriage: what is it?
  2. Civil union: what is it, how is it treated
A
  1. Common Law Marriage is a celebration of license from civil authority. Where common law marriage is recognized,
  2. If you hold yourselves out as married (Civil Union), then you’re married.

Common law marriage and licensed marriage are equally lawful marriage.

A person can be sued for alimony and divorce.

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15
Q

Bigamous marriages: what are they and how are they treated

A

A marriage where one of the spouses is already married to a third party.

Courts do not recognize bigamous marriages

Illegal and void at common law

The latter spouses are not considered spouses

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16
Q

Non Married Partners can get money from:

  1. E……
  2. I……
  3. P…..
  4. J…..
  5. Q……
  6. C…..
A
  1. Express K
  2. Implied K
  3. Partnership agreement – palimony not recognized, but may find joint venture or partnership
  4. Joint venture – May be unequal shares; less formal engaged in business or activity
  5. Quantum meruit – reasonable expectation of being compensated; Entitled to fair market value for what you provided minus compensation already received
  6. Constructive trust by fraud – Prevents unjust enrichment or fraud; mutual understanding or agreement where one party has obtained property with an equitable duty to transfer title to another to whom it rightfully belongs
    Resulting trust mutually acquired
17
Q

Non-Married Partners cannot get money from what?

What is a Pre-Cohabitation agreement?

A

Cannot be “paid” for sexual services.

Pre-cohabitation agreement__s:
-Agreements are express contracts that determine the terms of a living arrangement.

  • These are less strictly scrutinized by courts than premarital agreements because there’s less public policy consideration.
  • Provisions of a pre-cohabitation agreement would include identifying what independent property comes into the relationship.
  • There must be an entire agreements provision, usually found at the end of the contract that says no changes in regards to real property will be enforced unless in writing.

Property (17 decks)

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