Presumptions

Question 1

Using Presumptions

Answer 1

Presumptions are not evidence
i. Evidence must be presented to raise presumptions (i.e., you are married and that the property was acquired during marriage)

ii. General CP Presumption applied (or presumption that its SP if shown to be from before marriage or whatever)

iii. If no evidence is presented that rebuts the presumption, it becomes conclusory
1. i.e., tracing funds

Question 2

General CP Presumption

Answer 2

Property acquired or possessed during marriage is presumed to be CP, but can be rebutted by tracing to the source of funds
- Applies to untitled property or property titled in one spouse’s name
- If it is in both spouse’s names, then we move on to jointly titled presumptions

• Presumption raised when spouse provides evidence that property was acquired during marriage
• Becomes conclusive if not rebutted (SP Proponent has burden of proof)

Question 3

CP Presumption if unclear when property was acquired

Answer 3

In LONG TERM marriages (10 or more years), the General CP Presumption applies if property is possessed during marriage and cannot be traced

In SHORT TERM marriages, property possessed during marriage may not give rise to the CP Presumption (if you cant prove when acquired), instead presume that it is SP and place burden on CP proponent to rebut

Question 4

Marriage of Ettefagh

Answer 4

When title is in one spouse’s name, funds control, not the title. Intent of the parties only controls if there has been a valid transmutation