Pg 2

Question 1

What state was the first to adopt the community property system?

Answer 1

California

Question 2

How did community property revolutionize rights?

Answer 2

Before, the husband worked and the wife stayed home. Community property recognized that the wife’s role was equal contribution to the community, so it made both spouses equal contributors during the marriage because both spouses are working for the community

Question 3

What is involved in separate property?

Answer 3

All property owned before marriage or acquired by the spouse during marriage if it is by gift, bequest, devise, or descent. The owner spouse has exclusive management and control of that property and can convey it without the consent of the other person.

Question 4

What happens to separate property on divorce and on death?

Answer 4

• on divorce: the owner spouse takes all of it

– on death: the owner can will away all of his SP

Question 5

What is the first thing you should identify on an essay for community property?

Answer 5

The original source of the property

Question 6

What should the general introduction to a community property essay be?

Answer 6

• LAW: Husband and wife are married in California and are residents of California, so the law of California will be applied to the divorce proceeding.
• CP: California is a community property state. The general presumption is that all property acquired by either spouse during the marriage, whether real or personal, is community property. Conversely, all property acquired by gift, bequest, devise, or descent is considered to be the separate property of the receiving spouse, as well as anything he owned prior to the marriage.
• At termination: each spouse retains his or her SP and is entitled to half of the CP. In this case, the ownership of husband and wife’s assets depends on whether the CP presumption controls, as well as whether the actions of the parties or other presumptions have changed the character of the property. Each asset will be separately discussed below

Question 7

What are the major things to discuss on an essay for community property?

Answer 7

Threshold questions:
• marital status
• marital domicile

Characterize property based on its source:
• manner and time of acquisition
• tracing

Actions that change character of the property:
• commingling
• value enhanced during marriage
• transmutations

Presumptions:

Question 8

What are the threshold questions to deal with for community property on an essay?

Answer 8

• The facts state that all events occurred in California, so there would be no quasi-CP issues to address
  – additionally there are no facts to indicate that the marriage was not valid, so there would be no quasi-marital property issues

Question 9

After addressing threshold questions on an essay, what is the first thing to talk about?

Answer 9

Marital status: ask if the parties are legally married

Question 10

Is it necessary that the parties be married in California for a marriage to be valid?

Answer 10

No, California recognizes any marriage that was legal in the state or country that it happened in

Question 11

What are the elements that are required for a legal marriage to occur?

Answer 11

Both parties need:
– legal capacity to marry
– no prior subsisting marriage
– a marriage license
– a witness to ceremony
– recordation of the marriage certificate

Question 12

A legal marriage in California is subject to community property laws unless what?

Answer 12

Both parties agree otherwise through a premarital agreement

Question 13

What is the process by which a person becomes legally married?

Answer 13

– presents the marriage license from the county clerk to someone authorized by state law to solemnize the marriage
– has a ceremony that is witnessed or attested to by witnesses on the face of the certificate
– each party publicly declares the marriage
– certificate is returned to the County recorder and becomes a marriage certificate

Question 14

What is a putative marriage?

Answer 14

A defective relationship. This happens when a couple married and doesn’t find out until divorce or death that the marriage was not valid

Question 15

If one spouse was not divorced from a previous marriage when he remarried another spouse, what happens to the second marriage?

Answer 15

It is void even if all other requirements are met

Question 16

If a husband and wife married and lived in California for 20 years, but didn’t know that the wife’s divorce from a previous spouse wasn’t final when they actually got married, and the husband worked during the marriage and the wife raised the kids and everything they bought was with the husband’s earnings and in his name, what doctrine would be applied to stop the inequality?

Answer 16

This would be considered a putative marriage and the quasi-marital property doctrine would apply

Question 17

What are the elements that apply to a putative spouse?

Answer 17

• one or both parties must have a good faith belief that the marriage was valid (determined by looking at the subjective belief of the spouses/their actual belief).
  – the belief must have been objectively reasonable (determined by asking if a reasonable person in the same situation would have believed the marriage was valid)

Question 18

What happens to property that was gotten during a putative marriage?

Answer 18

It is considered quasi-marital property and divided under community property laws.
– If the couple gets divorced: the quasi-marital property is divided in the same way that community property would be divided, which is equally
– if one spouse dies: the putative spouse is treated like a legal spouse
- intestacy: the putative spouse gets all of the quasi-marital property and a fraction between 33% and 100% of the separate property depending on the heirs

Question 19

What happens when a putative spouse had a legal will?

Answer 19

• SP: He can will away all of his SP
• CP: he can will away half of his CP during the marriage and half of his quasi-marital property during the putative marriage. The other half of the CP and QMP are divided equally between the legal spouse and the putative spouse
  – intestate: the estate is divided equally between the legal spouse and the putative spouse

Question 20

How long does putative spouse status last?

Answer 20

As long as one spouse has a good faith believe in the validity of the marriage. After invalidity is discovered, you are not considered a putative spouse anymore. So anything gotten after that is the SP of the acquiring person. From then on the couple is considered to be unmarried cohabitants and they only have the rights of unmarried people

Question 21

What is a meretricious relationship?

Answer 21

Two people living together in a situation that resembles traditional marriage but both know they aren’t married. In this case the distribution of property is governed by judicial decision. If the parties have express or implied contracts (based on conduct), those are enforced unless they are based on sexual services.

Question 22

Under what theories can nonmarital partners recover?

Answer 22

Quantum meruit and other equitable remedies

Question 23

Does Community property law apply to unmarried cohabitants?

Answer 23

No

Question 24

What is a common law marriage?

Answer 24

Courts infer a formal agreement to marry from evidence of habit and reputation through marriage-like cohabitation and reputation in the community that the couple is lawfully married. These include non-marital partners that live together and do things like pool earnings or share joint accumulations.

Question 25

Does California recognize common-law marriages?

Answer 25

No unless they were validly contracted elsewhere

Question 26

Why would a common law marriage not be found to be enforcible if it was based on immoral and elicit consideration of meretricious sexual services?

Answer 26

Because you cannot contract to pay for sex since that is prostitution

Question 27

What is a registered domestic partnership?

Answer 27

This gives minimal rights to domestic partners, which are two adults that choose to share one another’s lives in an intimate and committed relationship of mutual caring.

Question 28

Does California recognize registered domestic partnerships?

Answer 28

Yes

Question 29

How do you register a domestic partnership?

Answer 29

With the California Secretary of State

Question 30

What are the two rights that you get from registering a domestic partnership?

Answer 30

• requires health facilities to treat you and your kids as family members for hospital visitation
  – authorizes government employers to give healthcare coverage and related benefits to domestic partners of government employees
  – in 2005 this extended to give the domestic partners virtually all of the state law rights and responsibilities that married people have

Question 31

How do you terminate a registered domestic partnership?

Answer 31

There must be a proceeding for dissolution or judgement of nullity

Question 32

What are the different types of marital statuses?

Answer 32

- legal marriage
– putative marriage
– meretricious relationship
– common law marriage
– registered domestic partnership

Question 33

On an essay, after you have figured out the threshold questions and marital status, what’s the next thing that should be addressed?

Answer 33

A question of marital domicile. Have the parties lived their entire married life in California or not?

Question 34

What is quasi community property?

Answer 34

Real and personal property that is acquired while the spouses are domiciled outside of California. This is considered to be community property if it would’ve been community property if the spouses had acquired it while domiciled in California.

Question 35

When is property treated as quasi-community property?

Answer 35

Only on death or divorce. While the marriage lasts, the couple’s property rights stay intact from their prior domicile