Marital Property

Question 1

Curtesy

Answer 1

Husbands interest in wife’s property. Husband received life estate in all, not just a third. Lasted until husband or wife died…estate by the marital right.

Rights were inheritable by children so long as the child was born alive (did not have to survive).

Question 2

Dower

Answer 2

At common law, wife had 1/3 of property interest in husbands property. If husband died, dower would stick with wife until…

Dower cannot be defeated by selling or mortgaging the property-only by executing a deed

Dower has been abolished in all but four states.

Question 3

Community property

Answer 3

Minority of states- everything acquired during marriage is shared by the spouses at divorce. This includes wages, pensions, dividends. It excludes inheritance. Interest on the dividends could be split, or the court may find that the entire inheritance + dividends would go to spouse that inherited.

All property acquired before marriage is separate.

-Prenups provides assets purchased with income earned by one party shall remain that person’s property

Question 4

Common law

Answer 4

Separate property: automatically results in tenancy by the entirety. Property goes to whoever owned the property before the marriage or whoever paid or inherited it. Alimony was developed to protect non working women after divorce. However, many states have passed laws that mimic those of community property in divorce, but a judge must decide what property is community and separate.

Question 5

Modern Elective Share

Answer 5

All but on jurisdiction recognize this. Spouse is automatically given 1/3 or 1/2 property either intestate or by will. The elective share is nontransferable. 1/3 when there are children, 1/2 when no children.

-Majority states give fee simple at death but there are a few that hold life estate

Question 6

Common Law Divorce

Answer 6

Assets allocated through equitable distribution

Factors:
1-earning capacity
2- age and mental/physical health (older will get more)
3- Employability
4- present incomes
5- duration of marriage, the longer they are married the more the wife will get
6- contribution (how was the property managed).

Question 7

Essay considerations

Answer 7

• Early marital property and theories of Republicanism (looked to the family as testing ground for development of social expectations and learning civil responsiblities.
• moved to Formalist thinking in the nineteenth century during the same time freed slaves were fighting for their freedom and voting rights
• How this relates to notice. Both notice and risk are culturally defined concepts. What we are expected to reveal and what we are expected to look for.
• THe difference s between ownership, management, and dispositional authority. Allowing women to have dispositional authority subjected them to the public sphere, which the government was not ready for in Van Riper.
• MWA was meant to protect women from economic hardship but not subject her to the public sphere (contracting)
• Change in marriage laws today. More contractual, less about status

Question 8

Cases

Answer 8

Bradwell, Van Riper, Kirchberg, Gibbons, Zimmerman, Hanchett v. rice

Question 9

Marvin v. marvin

Answer 9

Community relationship between unmarried couples are common now and post separation and asset allocation is can be found. However, implied contracts to pay support in the future are difficult to prove.

Shouldn’t partner’s decision to give up working be considered when deciding who gets what property? Marvin court didn’t think so.

The structure of Marriage and relationships is something that is continuously changing. Think about the implications the change will have on property law. Think about the implications of predicting property rules (Van Riper and Marvin)

Courts are beginning to change the law for non-marital intimate couples.

Marvin is a good example of a legal debate inside a cultural debate.

-Move away from Republicanism ideologies toward contractual agreements