Summary of CP Topics

Question 1

Tracing

Answer 1

Changes in form do not change the character of property.

Question 2

Credit acquisitions

Answer 2

1. Characterized by examining the intent of the lender
2. at the time credit is extended.

Question 3

Commingled bank accounts - tracing methods

Answer 3

1. Direct tracing; or
2. Exhaustion (family expense doctrine);
3. Used to trace commingled bank accounts

Question 4

General CP Presumption and Rebuttal

Answer 4

1. Acquired during marriage = CP;
2. Acquired after, before, or during by gift, bequest, or devise, and rents, issues, and profits therefrom = SP;
3. Rebutted by tracing;
4. Rebutted by agreement (writing after 1/1/85).

Question 5

Pre-1975 Married Woman

Answer 5

1. Rebutted by showing that H did not intend to change CP funds into W’s SP.

Question 6

Joint form presumption

Answer 6

1. Rebutted by written agreement; or
2. Clear statement in title or deed.

Question 7

H and W presumption

Answer 7

1. Rebutted by written agreement

Question 8

Premarital agreements

Answer 8

1. Transmutation before marriage;
2. In writing on or after 1/1/1986

Question 9

Gifts between spouses

Answer 9

1. Exception to 1/1/85 writing requirement;
2. Tangible of personal nature
3. Insubstantial value;
4. used solely by recipient spouse.

Question 10

Apportioning enhanced value of SP business during marriage

Answer 10

1. Prereira - reasonable rate of return (balance to CP);
2. Van Camp - reasonable value of services (balance to SP);

Question 11

Apportioning enhanced value of CP business after permanent separation

Answer 11

1. Reverse Prereira - reasonable rate of return (balance to SP);
2. Reverse Van Camp - reasonable value of services (balance to CP).

Question 12

Apportionment of real property - payment of mortgage principal

Answer 12

1. CP on SP - pro rata ownership;
2. SP on CP - reimbursement under FC §2640;
3. SP on SP - Lucas gift presumption or reimbursement with agreement.

Question 13

Improvements to real property of one character by funds of another character

Answer 13

1. CP on SP - greater of reimbursement of CP or increased value;
2. SP on CP - reimbursement under FC §2640;
3. SP on SP - Lucas gift presumption or reimbursement with agreement.

Question 14

PI damages

Answer 14

1. Characterized by when cause of action arose (inception of right);
2. During marriage are CP;
3. SP of injured spouse on divorce; unless
4. Commingled; or
5. Interests of justice require otherwise.

Question 15

Life insurance proceeds at death

Answer 15

1. Characterized by funds used to pay the premiums.

Question 16

Life insurance as an asset at divorce

Answer 16

1. Pro rata according to how premiums were paid.

Question 17

Pension benefits

Answer 17

1. Allocated using time rule;
2. Earned during marriage and paid after divorce are CP and allocated using time rule;
3. If death triggers allocation, think federal preemption and Terminable Interest Doctrine.

Question 18

Disability benefits

Answer 18

1. Replacing lost wages during marriage are CP;
2. Replacing lost wages after marriage are SP.

Question 19

Severance pay

Answer 19

1. Similar to disability;
2. CP if intended to compensate for lost wages during marriage;
3. SP if intended to compesate for lost wages after divorce.

Question 20

Early retirement

Answer 20

1. Additional monthly pay is CP ecause an enhancement of benefit earned during marriage.