Parties subject to CP

Question 1

Types of parties that could be subject to community property (CP)

Answer 1

5 types:

1. Married couples
2. Unmarried cohabitants
3. Putative spouse (PS)
4. CA Domestic Partner Rights and Responsibilities Act
5. Same-sex marriage (Prop 8)

Question 2

Married couples

Answer 2

1. General requirements—consent of two parties who have legal capacity to enter into the contract of marriage and formal legal procedures; age of consent to marry is 18 years, anyone younger must obtain a court order and written consent of a parent or guardian
2. Common law marriage—only recognized in CA if validly contracted in other states
3. Void marriage (never legally existed)—incest, bigamy, or not lawfully contracted
4. Voidable marriage (can become valid)—can be annulled if one party is under 18, prior existing marriage, unsound mind, consent obtained by force or fraud (must be vital to relationship), and physical incapacity

Question 3

Unmarried cohabitants

Answer 3

1. Distribution of property governed by contract principles (during cohabitation)
2. Express contracts enforced unless based upon meretricious sexual services
3. If no express contract, the court will examine the conduct of the parties for an implied contract or understanding

Question 4

Putative spouse (PS)

Answer 4

1. Putative marriage—a party with a good-faith belief based upon objectively reasonable grounds that she is validly married is a putative spouse
2. Quasi-marital property (QMP): all property that would be considered CP or QCP had the marriage been valid
3. Rights
   • Division of property—CP principles apply (so ½ interest in QMP), but PS rights stop accruing when PS discovers that marriage is invalid; court must divide QMP only upon the request of PS
   • Both parties know marriage is invalid—use doctrine of estoppel against the other partner if still engaged in benefits of cohabitation
   • Non-good-faith spouse—may obtain ownership interest in QMP of good-faith spouse (still an undecided issue)
   • Decedent’s SP—PS has same rights as surviving spouse
   • Legal & putative spouse—decedent’s estate split equally

Question 5

CA Domestic Partner Rights and Responsibilities Act

Answer 5

Applies retroactively to all previously registered domestic partners

1. Upon death—the surviving partner has the same rights, protections, and benefits as a surviving spouse
2. Dissolution—CP divided equally between partners; rules of divorce apply

Question 6

Same-sex marriage (Prop 8)

Answer 6

District Court found Prop. 8 unconstitutional; U.S. Supreme Court ultimately ordered dismissal of appeal of that decision due to lack of standing, allowing same-sex marriage to resume in California