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July Exam - Family Law > Property Division > Flashcards

Property Division Flashcards

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1
Q

Approaches to Property Division

A
  • community property
  • equitable division of all property
  • equitable division of marital property
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2
Q

Community Property Approach

A
  • all property acquired during the marriage is deemed owned one-half by each spouse
  • all property brought into the marriage or acquired by gift or bequest is separate property
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3
Q

Equitable Division of All Property Method

A
  • court divides all property owned by either spouse, whether acquired before or after the marriage
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4
Q

Equitable Division of Marital Property

A
  • each spouse takes their separate property
  • court divides only the property acquired during the marriage
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5
Q

Two-Step Property Division Process

A

1 - Classification -> determine what is marital property + what is separate property
2 - Division -> make an equitable division of the marital estate no matter how the property is titled
-> note that equitable division does not necessarily mean equal

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6
Q

Property Distribution Decrees - Modifiable?

A
  • NO, not modifiable
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7
Q

Separate Property

A

Includes:
- property owned before the marriage
- property acquired by gift or inheritance
- property acquired in exchange for separate property
- income + appreciation of separate property
- pain and suffering awards
- personal damages (ex: future lost wages or future medical expenses)
- property acquired after an order of legal separation that includes a final disposition of property

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8
Q

Marital Property - General Concept

A
  • all other property acquired during the marriage
  • some jurs use date of separation as end of marital estate, vs others use date of filing for divorce
  • subject to equitable distribution by the court
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9
Q

Marital Property - Things Included

A
  • property acquired during the marriage
  • earnings
  • employment benefits, pensions, + stock options
    -> note that majority rules says they’re marital property even if they won’t be exercised/vested until after the marriage
  • lost wages
  • reimbursement for medical bills incurred + paid w/ marital property
  • recovery for damages to marital property
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10
Q

Lost Wages + Marital Property

A
  • many courts hold that if a cause of action for lost wages due to personal injury accrues between the date of marriage + final separation, then the proceeds from the settlement or award are marital assets subject to distribution
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11
Q

Property That Changes Character

A

Separate property can become marital property through either:
- commingling
- transmutation

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12
Q

Commingling

A
  • occurs when separate property is inextricably intertwined w/ marital property or w/ the separate property of the other spouse to the extent that it can no longer be traced
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13
Q

Transmutation

A
  • occurs when separate property is treated in a way that evidences an intention for the property to be marital property
    -> ex: placing separate property in the names of both spouses
    -> ex: husband uses separate property as down payment on a house for him
    + wife titled in both of their names -> presumption of gift based on joint title + the $10,000 would be classified as marital property
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14
Q

Improvement of Separate Property

A
  • when separate property is improved by the use of marital funds or the efforts of a spouse, courts generally hold that the property remains separate property
  • BUT most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property
  • increase in value due to market factors would remain separate property
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15
Q

Property Acquired Before Marriage But Paid for After

A
  • courts are split on the treatment of property acquired before marriage but paid for after marriage
  • majority view seems to be that property should be apportioned between separate + marital estates in proportion to the contribution of separate + marital funds to pay for the property
  • other states focus on the inception of title + allow a reimbursement remedy
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16
Q

Pensions

A
  • portion of a pension earned during a marriage is marital property subject to distribution
  • courts use different formulas to calculate the share of the pension that was earned by the party during the marriage + the amount will be subject to division
  • some courts will give the non-earning spouse other funds from the marital estate to offset the amount of the pension plan
17
Q

Professional License or Degree

A
  • most jurs have held that professional license or ed degree is not distributable property
  • BUT to avoid unfair results, some jurs use alimony to compensate supporting spouses for their contribution during the other spouse’s education or training
18
Q

Tax Consequences of Property Division

A
  • property division is not considered a taxable event
19
Q

Equitable Division - General Concept

A
  • not necessarily equal
  • trial court has a ton of discretion -> make sure to mention in essay q!!
  • court’s division of the property isn’t subject to modification once the divorce is final
20
Q

Equitable Division - Factors

A
  • age, ed, background + earning capabilities of both parties
  • duration of the marriage, + whether any prior marriages
  • standard of living during marriage
  • present incomes of both parties, their vocational skills, + employability
  • source of the money used to purchase the property
  • health of the parties
  • assets, debts, + liabilities of the parties
  • needs of the parties
  • child custody provisions
  • whether distribution is in addition to, or in lieu of, alimony
  • each party’s opportunity to acquire future income + assets
  • each party’s contribution to the acquisition or enhancement of the existing marital assets
  • each party’s contribution as a homemaker to the family unity
  • economic fault (i.e. whether either party has dissipated marital property)
  • marital fault typically NOT a consideration, but can be in some states
  • MEMORIZE THESE
21
Q

Methods of Division

A
  • can divide the property in kind -> actually dividing the assets
  • can divide by contribution (awarding assets to one spouse + money to other

July Exam - Family Law (11 decks)

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