Pg 1

Question 1

What is the major mantra of community property?

Answer 1

A change in form doesn’t change the character of the property

Question 2

What is involved in a California valid marriage?

Answer 2

This is a civil contract between two people that each are capable of consenting and do consent

Requires: license, solemnization, registration with county records

Question 3

What is a codicil?

Answer 3

An addendum to a will

Question 4

Does a gift require consideration to be valid?

Answer 4

No

Question 5

What happens to income from property?

Answer 5

It retains the same character as the original property.

I.e.: if you inherit a mountain cabin, that is your SP, so all rent from the cabin is also SP.

Question 6

What happens to rent, issues, and profits from SP?

Answer 6

It stays SP unless it becomes a mixed asset because those things are gotten by the efforts of one spouse

Question 7

What happens to a joint tenancy when someone dies?

Answer 7

The survivor takes all

Question 8

Joint tenancy is actually a form of what kind of ownership?

Answer 8

Separate property

Question 9

What does each spouse get with regard to a joint tenancy?

Answer 9

An undivided half interest in the joint tenancy with right of survivorship

Question 10

If you want to create a joint tenancy, what is necessary?

Answer 10

That it is expressed in clear and unequivocal language

Question 11

What happens in a tenancy in common?

Answer 11

Each spouse takes an undivided fractional interest in the whole with no right of survivorship.

Question 12

When an attempted joint tenancy fails, what happens?

Answer 12

It becomes a tenancy in common

Question 13

Where must the spouses live in order for a separation to occur?

Answer 13

At different addresses

Question 14

What does “Step Up” mean?

Answer 14

This is when property passes from a decedent to a survivor, and the survivor gets a step up in BASIS to the fair market value of the property at the decedent’s death. This means there’s no taxable gain so the person does not have to pay taxes.

The same is true if the property is held in joint title by spouses and one spouse dies. The decedent’s 1/2 goes to the living spouse who gets a step up.

Question 15

What is the difference that happens between a spouse taking property at death through community property or joint title with regard to “step up”?

Answer 15

– Community property: spouse gets a step up for all property and pays no taxable gain
– joint tenancy: the surviving spouse only gets a step up for the decedent’s half of the property, not for his own half. So there is still a taxable gain on his half when he sells it.

Question 16

What is taxable gain?

Answer 16

When property is sold, there’s a difference between the sales price and the seller’s basis. The basis is the sum of the purchase price and the cost of improvements

Question 17

What happens at death in relation to a marriage?

Answer 17

Termination happens at death. So if a party dies before a divorce is entered, the divorce abates entirely

Question 18

What is undue influence?

Answer 18

Taking grossly oppressive and unfair advantage of another’s necessity or distress.

Question 19

Untitled property that is gotten during marriage is presumptively what?

Answer 19

Community property.

Question 20

If property was gotten by purchase before 1975 and titled in the names of the husband and wife without more, what is it presumed to be?

Answer 20

The wife holds an divided half interest as her separate property and the husband holds his half as community property

Question 21

What are the necessities of life?

Answer 21

Living costs that are consistent with the spouse’s station in life.

Ie: private school tuition for kids because a rich person’s living costs are way more than a poor person’s

Question 22

What are the common necessaries of life?

Answer 22

The expenses needed to sustain life. This includes things like food, shelter, clothing, and medical care

Question 23

Where did the community property system that is currently in place in California originally come from?

Answer 23

The Spanish system.

Question 24

What is the essence of community property?

Answer 24

It distinguishes between:

• marital property: property earned during the marriage through the labour of the parties
• separate property: property gotten before marriage or during marriage as a gift, bequest, devise, or descent

Question 25

What is the purpose behind the community property system?

Answer 25

To keep ancestral land in the bloodline

Question 26

Under modern law, when does a non-earning spouse’s interest attach?

Answer 26

As soon as property is acquired by the other spouse

Question 27

What is involved in the married women’s property acts?

Answer 27

It treats married women as separate owners of all property that they bring into the marriage or earn during the marriage

Question 28

What are different grounds for divorce?

Answer 28

– adultery
– desertion [12 months]
– extreme cruelty [physical or mental that endangers the safety or health of the spouse or makes it unreasonable to expect the spouse to cohabitate]
- separation for 18 months with no reasonable prospect of reconciliation
– voluntarily induced addiction to narcotics or habitual drunkenness for period of 12 months
– institutionalization due to mental illness for 24 months
– imprisonment for 18 months
– deviant sexual conduct performed by spouse without consent on the other spouse

Question 29

How is child support calculated?

Answer 29

With guidelines that are based on the percentage of income that parents at various income levels spend on kids in intact families

Question 30

When does spousal support or alimony terminate?

Answer 30

At the death of either spouse or when the obligee remarries or lives in a marriage-like cohabitation with someone else.

Question 31

Is alimony dischargeable in bankruptcy?

Answer 31

No

Question 32

What are some things that are not dischargeable in bankruptcy?

Answer 32

Taxes, child support, alimony

Question 33

How is alimony calculated?

Answer 33

According to the marital standard of living that was maintained in two households

Question 34

What is involved in the 1974 uniform marriage and divorce act?

Answer 34

This promoted division of property instead of spousal support, and only gave spousal support if the spouse couldn’t meet her reasonable needs from the property of the divorce and earnings from gainful employment. There is an exception if there are young kids or the other spouse is incapacitated. This put a time limit on spousal support, which was the time necessary to get enough education or training to find employment

Question 35

What was involved in the 1988 California amendment to the uniform marriage and divorce act?

Answer 35

California amended its laws to require the court to consider the marital standard of living and the extent that the earning capacity of each is sufficient to maintain it, and to assess the needs of each party based on that standard.

Question 36

What does ALI say about spousal support?

Answer 36

It abandoned spousal support and gives compensatory spousal payments that are meant to distribute fairly the losses caused by the divorce. This is redistribution from a higher income spouse to a lower income spouse and is calculated by formula based on the length of the marriage and responsibilities of each spouse

Question 37

What are the two different types of jurisdictions that apply in the United States with regard to marriage and divorce?

Answer 37

Community property jurisdictions and common-law jurisdictions

Question 38

What is involved in the modern common law approach to marriage and divorce?

Answer 38

Property either belongs to the husband or the wife and is only held jointly when one or both spouses decide to take title that way by explicit choice. Spouses are essentially regarded as if they are unmarried.

Wirth case: the wife’s income went to pay for all household expenses and the husband’s went into an account “for their future”. On divorce, the wife had no vested interest in the husband’s account and got nothing

Question 39

What are the systems that are used at termination of a marriage under the common-law approach?

Answer 39

– elective share: applies at death

– equitable distribution: applies at divorce

Question 40

What is involved in the elective share system that is used for termination when the modern common-law approach applies?

Answer 40

This takes effect at death. It ensures that the surviving spouse gets a substantial portion of the decedent’s estate as an intestate heir. The percentage is usually between 1/3 and 1/2

Question 41

What is involved in the equitable distribution system for use at termination under the modern common law?

Answer 41

This takes effect upon divorce. The court distributes the spouse’s property based on a 50-50 distribution without any regard to pre-divorce ownership because marriage is seen as a partnership and each spouse contributed to its downfall, so a judge apportions the assets in a manner that is just and fair to the parties taking into account these criteria:
••• age of each, earning ability, duration of marriage, standard of living during marriage, what was brought into the marriage, present income of each, property acquired during the marriage, source of acquisition, income producing capacity of the property, debts of each in the marriage, mental and physical health of each, likelihood of keeping current employment, effect of distribution on ability to pay alimony, gifts from one to the other during marriage, etc.

Question 42

How many states have community property law?

Answer 42

Nine

Question 43

What are the states that have community property law?

Answer 43

Washington, Idaho, Nevada, California, Arizona, New Mexico, Texas, Wisconsin, and Louisiana

Question 44

What is the essence of community property?

Answer 44

It presumes joint ownership unless the spouse demonstrates otherwise. Spouses contribute equally to the family, so this rectified sex-related inequality of employment opportunities. This establishes two types of marital property: community property and separate property

Question 45

What is community property as a type of marital property?

Answer 45

All property acquired by the labour of either spouse during the marriage is owned equally by both spouses from the moment of acquisition.

Question 46

What happens when one spouse dies with community property?

Answer 46

The surviving spouse and the decedent each own half of the community property. The community property is owned equally during the marriage and divided equally on death or divorce

Question 47

What happens to the income from separate property during the marriage?

Answer 47

It stays separate property unless one spouse worked to make it

Question 48

If there is appreciation of separate property during the marriage, what happens to that?

Answer 48

It stays separate property

Question 49

What does community mean?

Answer 49

Spouses that are legally married