Rule Statements Flashcards
CP principles
CA is a community property state. In a CP state the marital economic community begins upon marriage and ends at divorce, death of a spouse, or permanent separation with the intent to not resume the marital relationship.
Property, earnings, or debts acquired during marriage are presumed CP.
Property acquired by either spouse before marriage, gift or inheritance during marriage, or after divorce or permanent separation is presumed to be SP.
Property acquired by a married couple while living in a non-CP state that would be characterized as community property if the couple had been living in CA at the time of acquisition is quasi-community property. This is treated as CP at divorce or death
quasi community property
-treated as CP at divorce or death
-if only one spouse holds title to property, then non-titled spouse holds only those rights under law of place of prior domicile
marriage
-consent
-capacity
-formal legal procedures (LSA: license, solemnization, authentication)
married couples property will be distributed based on CP principles
permanent separation
1) at least one spouse expressed intent to end marriage
2) spouse’s conduct consistent with that intent
domestic partners
-intimate and committed relationship of mutual caring
-registration under CA law
-subject to CP principles
unmarried cohabitants
-follow K principles. express K’s enforced unless based on meretricious sexual services
-can follow implied K, or unjust enrichment/fairness
putative spouse
one or both spouses have good faith belief in validity of marriage but marriage is not valid.
court looks at totality of circumstances
putative spouse can rely on CP principles until they learn of invalidity
if someone has legal and putative spouses–> split of estate
quasi marital property
all property that would be CP or QCP if they were married
premarital agreements
-in writing
-signed by both parties
-don’t need consideration
-OR promissory estoppel/detrimental reliance if not the above
invalid if
-one party didn’t voluntarily sign:
–> no independent legal counsel unless waiver in writing separate from prenup
–> lapse of 7 days from seeing K to get counsel
–> not fully informed of terms or didn’t understand the terms b/c in diff language that was not proficient in
–> lack capacity b/c duress, fraud, or undue influence
-unconscionable agreement at time it was executed:
(i) the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party;
(ii) she did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party; and
(iii) she did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
limits: can’t impact child support or promote divorce
voluntary = CLIC –> counsel, lapse, informed, capacity
CP presumptions
income or any asset acquired other than by gift, bequest, devise during marriage.
SP presumption
-before marriage
-gift or inheritance during marriage
-after separation
special CP presumption
-applies ONLY AT DIVORCE
-all jointly held property is CP at divorce
-but during marriage each has 1/2 SP
can rebut presumption with: express writing evidencing spouse’s intent to hold as SP
CP held jointly, SP contributed to it
at divorce:
-if spouse contributes SP to this purchase, then the spouse has right to contribution but not to increase in value
special title presumption
-only applies at death
-whatever title on property is presumed to be the form
rebuttal of presumptions
-CP/SP: preponderance of evidence
-special presumptions: clear and convincing evidence
tracing
change of form is not change in character
transmutation
-changing nature from SP to CP; CP to SP; or SP of one spouse to SP of the other spouse.
must be
1) in writing
2) express language by adversely affected spouse
gift exceptions: tangible for personal use by donee spouse + not substantial in value considering financial situation of marriage –> no need for writing
title in one spouse’s name
doesn’t change nature if CP
spousal rights with CP
each spouse has an equal management and control right over CP and both must participate in decisions
gift to 3P: less for FMV without other spouse’s written consent, then non-consenting spouse can ratify or revoke gift and sue to recover 1/2 interest
sale/lease of real CP: both must participate in sale or lease for more than one year
-if title only in one spouse’s name and BFP, then valid transaction
-innocent spouse has one year to void transfer and reimburse BFP
-exception: atty lien for fam law cases
MGR = each spouse is a manager. management/control, gifts, sale/lease
fiduciary duties
each spouse owes duty to act in highest of good faith with respect to other spouse’s management and control of CP. neither may take unfair advantage of the other.
failure to get consent is breach. 3 year SOL to sue.
remedy:
-seek greater share of CP
-accounting
-add innocent spouse’s name to title
-forfeiture of asset if fraudulently concealed
SP businesses
income is usually if SP
if spouse contributes CP labor, apply van camp and pereira
Van Camp
-primary reason for increase is inherent value
CP = (reasonable value of services - annual family expenses) * years of marriage
SP = FMV at divorce - SP
Van Camp - reimburse community
if family expense were not paid out of salary but out of business: compare CP to total salary * years in business.
if total salary is less CP, then comp CP
if spouse was undercompensated, award apportionment to CP. CP>total salary, then CP - total salary = reimbursement
Pereira
primary reason for increase is personal skills/effort of managing spouse
SP = value of business at marriage + (value at time of marriage * fair rate of return or 10% * years of marriage)
CP = FMV at divorce - SP
