Pg 3

Question 1

What is the three-step approach that you use to characterize different types of property or assets?

Answer 1

Source, actions, presumptions

Question 2

What is involved in characterizing the property based on its source or how it came into the marriage?

Answer 2

Looking at the time and manner of acquisition as well as tracing

Question 3

Why is it important to consider the time and manner of acquisition for a source of property?

Answer 3

Because property that was acquired during the marriage is usually CP and property acquired before or after the marriage by gift or devise is usually SP

Question 4

What is required in order for there to be separation?

Answer 4

• sep houses: spouses must live separately and apart with no present intention to resume marital relations (must have separate residences)
  – intent: the court will look at the spouse’s conduct to show a complete and final break in the marital relationship. There must be intent by at least one spouse to end the marital relationship

Question 5

What are things that end a marriage?

Answer 5

Death, separation, divorce

Question 6

If a couple stays living at the same address, can they still be separated?

Answer 6

No, they must live in separate residences

Question 7

How do you show that there is a subjective intent to end the marriage to prove separation?

Answer 7

This is objectively shown by words or conduct to indicate a final break to the relationship

Question 8

What is the factual inquiry that the court will do to figure out a party’s intent to end a marriage?

Answer 8

They will look at the parties’ conduct to show their intention and they will consider all facts of the relationship to figure out when the separation actually occurred

Question 9

What are the two things that are required for separation?

Answer 9

– separate residences where the couple is living separate and apart
– intent by at least one spouse to end the marital relationship

Question 10

When a marriage ends, what also ends?

Answer 10

The economic community.

Question 11

What happens to earnings or accumulations of a spouse that are gotten while living separate and apart?

Answer 11

These are considered to be the separate property of that spouse. The “separate and apart“ is what changes the earnings from CP to SP

Question 12

What is separate property?

Answer 12

• all property owned by the married person before marriage
• or after marriage when gotten by gift, bequest, devise, or descent,
• Plus all proceeds from this property
• The owner spouse has exclusive control and management over this property

Question 13

What does it mean to get property by devise?

Answer 13

To get it under a will

Question 14

What does it mean to get property by descent?

Answer 14

Through inheritance

Question 15

What does it mean for the proceeds of property that is separate property to also be separate property?

Answer 15

Rent, issues, and profits from that property are considered to still be separate property

Question 16

What can you do with separate property?

Answer 16

You have exclusive management and control over it, so you can convey it without consent of the other spouse

Question 17

Upon divorce and death what happens to separate property?

Answer 17

– divorce: the owner spouse takes all separate property

– death: the owner spouse can will away all separate property

Question 18

Any property that is not separate property is considered to be what?

Answer 18

Community property

Question 19

If one spouse spends large amounts of time working on separate property, what can happen?

Answer 19

The community might be able to get some ownership interest or allocation of it

Question 20

The timing of acquisition divides separate property into four categories, what are they?

Answer 20

• gifts or devises from third parties
  – property gotten before the marriage
  – property gotten after the marriage ends
  – rents, issues, and profits

Question 21

Anything that is earned on separate property during separation belongs to who?

Answer 21

It is the SP of the owner spouse

Question 22

What is community property?

Answer 22

All property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in California, unless otherwise provided by statute.

Both spouses are equal owners and have equal management and control over the community property during the marriage

Once married, all time, skills, and efforts that are expended for the community as well as what they generate is community property.

Question 23

What happens to community property on death and on divorce?

Answer 23

• divorce: there is a substantially equal division of the community property between the husband and wife
  – death: the spouse that dies first can will away half of the CP.

Question 24

Is it possible for the community to get an ownership interest in one spouse’s SP?

Answer 24

Yes, if that spouse spends large amounts of time working on the SP

Question 25

What are the different categories of community property?

Answer 25

– True community property (CP)
– Quasi-marital property (QMP)
– Quasi-community property (QCP)

Question 26

How does something become true community property?

Answer 26

This is property that is acquired by onerous title, which means that it was gotten by the husband and wife during the marriage through their labor, industry, or other valuable consideration such as paying money, giving services, performing conditions, or paying charges that the property is subject to

Question 27

What is quasi-marital property?

Answer 27

This relates to the MARITAL STATUS. This is property acquired during a union that would have been CP or QCP if the union had not been void or voidable. This only applies to someone that is declared a putative spouse, which happens when there was a belief that the marriage was valid, but it turned out not to be.

Any property that was gotten during a putative marriage is considered to be QMP and is divided according to regular community property laws

Question 28

What is quasi-community property?

Answer 28

This relates to MARITAL DOMICILE. All real or personal property, wherever situated, that is acquired by either spouse while they are domiciled outside of California but that would have been CP if the spouse that acquired it had been domiciled in California, is treated under the same rules as community property

Question 29

If a spouse gets property damages, how is that categorized under either separate property or community property?

Answer 29

The damages have the same character as the property that was damaged. So recovery for damage to SP stays SP

Question 30

How do you figure out personal injury damages with regard to separate property or community property?

Answer 30

The elements are:

1. timing of the injury
2. identity of the tortfeasor.

Question 31

Under the element for personal injury damages of “identity of the tortfeasor,” what are the major things that need to be considered?

Answer 31

– when one spouse is the tortfeasor
– when there’s a third-party tortfeasor and the injury happened BEFORE the marriage
– when there’s a third-party tortfeasor and the injury happened DURING the marriage

Question 32

When one spouse is the tortfeasor and injures the other spouse during the marriage, how are the damages classified?

Answer 32

As the SP of the injured spouse.

Question 33

What is the order of satisfaction of judgment when one spouse is the tortfeasor that injures the other spouse during the marriage?

Answer 33

– insurance [doesn’t matter if the policy was bought with CP or SP]
– then SP of the tortfeasor spouse
– last resort is to use the CP to satisfy the judgment

Question 34

What happens to the personal injury damages that are gotten when a third-party tortfeasor injures a spouse before the marriage?

Answer 34

This means that the cause of action arose before the marriage, so it doesn’t matter if the funds are received during the marriage, they are the SP of the injured spouse

Question 35

If a spouse is injured by a third-party before the marriage, but gets damages that award compensation for his lost earnings that he would’ve earned during the marriage if he wasn’t injured, how are those earnings classified?

Answer 35

The lost earnings person may give the community a right to share in the damages to the extent that the injured spouse would otherwise have been able to work during the marriage.

I.e.: if the husband makes $10,000 a month and was injured on January 1 and could not work for a year, and the settlement includes $120,000 of lost earnings, and he got married in July, then $60,000 of earnings would be SP and $60,000 after the marriage would be CP because that replaces the earnings that he would’ve gotten while he was married

Question 36

How do you classify damages that are gotten from a third-party tortfeasor when the spouse was injured during the marriage?

Answer 36

The cause of action happens during the marriage, so the damages are community property. Although there’s a special rule for what happens to this money upon divorce

Question 37

What is the special rule for money that was gotten from an injury that was perpetrated by a third-party tortfeasor on a spouse during the marriage when the marriage ends?

Answer 37

Even though the damages were CP while the couple was married, upon divorce, the damages become SP of the injured spouse unless these two exceptions reply:
– the damages were co-mingled with other CP: then they become CP. BUT if the injured spouse can trace the funds to his personal injury damages, they can stay SP
– the interests of justice require otherwise: the court has discretion to give up to 1/2 of personal injury damages to the non-injured spouse based on a need determination. If it would leave the non-injured spouse destitute and dependant on the state for support, then the court can give up to 1/2 of the personal injury proceeds to that spouse

Question 38

What is involved in the element for personal injury damages that requires “timing of the injury“?

Answer 38

The cause of action arises when the right to receive the money comes into being. If the cause of the injury happened before marriage and settlement of the funds happened during the marriage, then the important date is when the injury occurred.

Question 39

If CP funds are used to pay medical expenses from an injury that a third-party tortfeasor perpetrated on one spouse before any settlement is received, what happens?

Answer 39

The community gets reimbursed from the personal injury award, and then the rest of the award is the SP of the injured spouse