Week 2 - Marital Property

Question 1

Separate Property System

Answer 1

Rights during marriage
– Property is separately owned by the spouse who acquired it (before or during marriage)
– Creditors of a particular spouse can only attach the separate property of that spouse
– Spouses can agree to hold property in concurrent tenancy

Rights at divorce
– Most separate property states mandate equitable distribution of property acquired during marriage in a “just and fair” manner
— Consider factors such as income, standard of living, each spouse’s income, length of marriage, contributions during marriage, etc.

Rights at death
– most states offer a forced share: option to take decedent’s will or to choose to receive a fixed portion of decedent’s estate (usually 1/3 or 1/2)
— E.g., if W dies and leaves 100% of assets to daughter in will, spouse can claim a forced share of 1/3 or 1/2 of assets

Question 2

Community Property System

Answer 2

Rights during marriage
– All earnings during the marriage and all assets acquired from those earnings are owned by both spouses equally
– Neither spouse can transfer 1/2 share to third party
– Neither spouse has right of survivorship (differing from joint tenancy/tenancy in common)
– Property acquired prior to marriage or after marriage by gift or inheritance remains property of individual spouse

Rights at divorce
– Divide community property between spouses
– In some states, each spouse receives an equitable share
– In other states, assets are divided using equitable distribution factors

Rights at death
– At death, decedent may devise their half of community property as they wish. The other spouse retains ownership of their half of community property

Followed by nine states including California

Question 3

Tenancy by the Entirety

Answer 3

Ownership of property is treated as though the couple were a single legal person.
– Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution
– There is nothing to prevent a creditor from insisting upon subjection of property held in tenancy by the entirety as a condition precedent to the extension of credit

Four Forms:
– Group I (Michigan, Massachusetts, etc.) – possession and profits of the estate are subject to husband’s exclusive dominion and control; husband may convey entire estate subject to possibility that wife may become entitled to whole estate upon surviving him
– Group II (Alaska, New York, New Jersey, etc.) – the interest of the debtor spouse in the estate may be sold or levied upon for his or her separate debts, subject to the other spouse’s contingent right of survivorship
– Group III (Delaware, DC, Florida, etc.) – an attempted conveyance by either spouse is wholly void, and the estate may not be subjected to the separate debts of one spouse only
– Group IV (Kentucky and Tennessee) – contingent right of survivorship appertaining to either spouse is separately alienable by him and attachable by his creditors during marriage; use and profits are neither alienable or attachable

Question 4

Are degrees marital property

Answer 4

Degrees are not marital property. However, a party to divorce can be awarded equitable reimbursement for supporting a spouse through school

Question 5

Palimony

Answer 5

A party who cohabitates with another person without subsequent marriage is entitled to relief upon a showing of either:
(1) an express contract or a viable equitable theory such as an implied contract or
(2) unjust enrichment