Pg 9 Flashcards
What are the different views that come into play with regard to joint form presumption?
– marriage of Lucas case
– anti-Lucas legislation
– Supreme Court ruling
What happened in the Marriage of Lucas case with regard to joint form presumption?
This applies if spouses contribute both SP and CP funds to buy an asset, and title is taken in joint form such as JT or CP.
In this case: Wife had a trust that she brought to the marriage [SP] and some of the purchase price of the real property came from her trust. The rest was from a loan that they both got. Title for the property said they took it as husband and wife JT. The wife paid for improvements on the property from her SP, but other expenses came from CP.
The court said: there is a presumption that a single-family residence purchased during marriage is CP, but this can be rebutted if the form of title says otherwise. Unless the other spouse knows that the SP spouse expects to be reimbursed or to have an SP property interest, no SP interest has been preserved. But a party that uses his SP for CP purposes is entitled to reimbursement only if there is an agreement between the parties that it shall be so. If not, the presumption is that SP was intended to be a gift to the community
What is involved in the anti-Lucas legislation with regard to joint form presumption?
This legislation attempted to overrule Lucas, but failed because it didn’t fully cover the field that Lucas occupied and the California Supreme Court said that retroactive applications of this legislation would unconstitutionally impair vested property rights.
This legislation said: all property gotten in JT during marriage [not just single-family residences] is presumed to be CP. This can be rebutted by a clear statement in the deed or title that the property is SP and not CP, or proof that the parties made a written agreement that the property is SP. Unless there is a written waiver, the party will be reimbursed for his SP contributions, but the amount cannot exceed the value of the property at division.
What are some things that are included in contributions under the anti-Lucas legislation for joint form presumption?
Down payment, improvements, reducing principle on loans
What are some things that are not included in contributions under the anti-Lucas legislation for joint form presumption?
Interest on the loan, taxes, insurance, maintenance on property
The anti-Lucas legislation essentially did what?
Reversed the Lucas gift presumption, and unless the spouse that contributed the SP relinquished the claim to it in writing, he had an SP claim that was interest free.
The problem was that there were major flaws because the legislation misread Lucas and misunderstood the California CP doctrine. So it didn’t repeal Lucas and it left Lucas as the controlling law for any co-ownership property not held in JT (any property that was held as CP or TIC). In 1987 the legislature amended it to apply to all property held in JT regardless of the date of acquisition
What was involved in the supreme court ruling after the anti-Lucas legislation for joint form presumption?
On divorce, property held in any joint form, not just single-family residences, is presumed to be CP and can only be rebutted by a statement in the deed or written agreement of the parties. The following are limits on retroactivity dates in order to not deprive parties of vested property interests without due process:
- before Jan 1/1984: Lucas gift presumption. SP used to get property in joint form is presumed to be gift to the community and only rebutted by contrary agreement
– Jan 1/1984 - Dec 31/1986: CP presumption only applies to property acquired as joint tenants
- on/after Jan 1/1987: property held in any form on dissolution is presumed to be CP
What is involved in the husband and wife presumption?
If an instrument’s deed has language that indicates that the parties are husband and wife, the property is presumed to be CP.
Ie: “ F and M, a married couple.“ “M and her husband F.“ “ F and M, husband and wife.“
If a deed just says “F and M Jones“ does the husband and wife presumption apply?
No, because it doesn’t have language that indicates that the parties are husband and wife. These two could possibly be brother and sister
What is the situation that the husband and wife presumption would not apply?
If the face of the deed has language showing a contrary intent to the husband and wife holding property as CP
Can you use tracing to rebut the husband and wife presumption?
No, but reimbursement can be allowed if SP was used to pay the principal. This can be rebutted by an agreement in writing after January 1/1985
What is involved in the pre-1975 married woman’s presumption?
This applies to property acquired by a woman before Jan 1/1975 by an instrument in writing. Then it is presumed to be her SP unless there is a different intent in writing on the face of the deed.
After January 1/1975: equal management and control of the CP began. Before that the husband had equal management and control of CP.
What is an example of the pre-1975 married woman’s presumption?
A deed that was written before January 1/1975 conveys property to “F and M Jones“ without language showing a different intent. M would own her half of the property as SP and F you would own his half as a CP. This could be rebutted by the intention of F if he didn’t intend to change CP into wife’s SP.
How does the pre-1975 married woman’s presumption deal with BFPs?
For BFPs, this presumption is not rebuttable, but is instead conclusive. BFP is a third-party that dealt with a married woman in good faith, not knowing the property wasn’t her SP, and who paid valuable consideration for it. Then the sale is conclusive and the sold property is considered SP.
How do presumptions about bank accounts work?
Bank accounts in the name of both spouses are presumed to be CP
