Potential Rights

Question 1

Equal management and control

Answer 1

1. EM&C effective 1/1/1975, real and personal CP, retroactive
2. Personal CP - access to bank accounts in one spouse’s name is exception;
3. Written assent of both spouses for gift to 3P or sale of CP personal belongings for < FMV;
4. At death of donor spouse, gift can be voided up to One Half its value;
5. Real CP - BFP presumption;
6. Add-a-name to title remedy
7. Dispense with joinder requirement if in best interests or unable to obtain consent.

EMABAGOH-BA-DJ

Question 2

Liabilities

Answer 2

1. CP incurred during marriage, SP incurred after separation;
2. Exception for necessaries of life; or
3. If all CP sources exhausted and would be equitable;
4. Medical after separation, maybe CP;
5. If other spouse had SP for necessary while living separately, may be entitled to reimbursement.

CID-SAS-NE-CEE-MAMC-SER (CP Incurred During SP After Separation Necessaries Exception CP Exhaused Equitable Medical After Maybe CP SP Entitled Reimbursement)

NEEEMARS (Necessaries Exception Equitable Exhausted Medical After Reimbursement SP)

1. SP of debtor spouse always liable anytime;
2. CP liable for either spouse for debts before or during marriage, except sheilded;
3. SP liable for spousal or child support prior marriage;
4. CP then SP of tortfeasor spouse acting for community;
5. SP of then CP of tortfeasor not acting for community;
6. SP of non-debtor spouse liable for other spouse’s necessaries after separation.

Question 3

Deliberate misappropriation

Answer 3

1. Occurs when one spouse takes CP to exclusion of other spouse;
2. Injured spouse entitled to 50%;
3. Court has discretion to award more.

OSESISDA (One Spouse Exclusion Spouse Injured Spouse Discretion Award)

Question 4

Fiduciary Duty - Presumption of Undue Influence

Answer 4

1. Taking unfair advantage creates rebuttable presumption of undue influence;
2. Advantaged spouse can rebut if
3. freely and voluntarily made
4. full knowledge of facts
5. complete understanding of effect of transfer.

TURPUD-FAV-KoF-CUE (Taking Unfair Rebuttable Presumption Undue Influence Freely and Voluntarily Knowledge of Facts Complete Understanding Effect)

Question 5

Fiduciary Duty

Answer 5

1. Spouses owe highest duties of good faith and loyalty;
2. Disclosure and accounting;
3. Court may award higher share of CP to remedy breach, void transaction, etc.
4. One spouse may not encumber assets with debt or otherwise dispose of them unilaterally.
5. 50% + attorneys fees for hiding, 100% at top value plus attorneys fees for acting with malice (bad faith).
6. Unfair advantage creates Rebuttable presumption of Undue influence.

SOHDAREDUR (Spouses Owe Highest Disclosure Accounting Remedy Encumber Dispose Unfair Rebuttable)