1. General principles Flashcards
general
CA is community property state. System views marriage as community, each spouse is equal partner
factors to characterize property
1) when acquired
2) how acquired
3) legal presumption for this asset?
4) change in characterization by action or agreement?
effect of what kind of property
1) management/control
2) creditors
3) division at divorce/death
source of law
statute – CA family code
some caselaw
exception to nl com property rules
1) enforceable marital or prenup agreement, OR
2) marriage k or settlement w stipulations contrary to statute
personal property: def
everything that’s not real property (stocks, cash, car, royalties)
property: def
present/future interests, legal/equitable, vested/contingent, can be real or personal. (most things)
separate property: def *
1) property owned by the spouse before the marriage
2) property acquired by the spouse during marriage by gift (bequest, devise, descent)
3) earnings or other aquisitions of either spouse while lliving separate and apart
gift: nuance
even if from spouse! even if bought w com property!
but can’t give gifts to yourself
living separate and apart: def
more than mere physical separation
–at least 1 spouse regards as permanent
other ways to get separate property
1) rent/issue/profits of the SP
2) property received in exchange for SP – change in form does not change ch
separate property: rights
either spouse may convey/dispose, encumber. w/o consent of other.
community property: presumption
broad def / presumpTion that it’s com property / all inclusive
com property: def
all property other than separate property, that is acquired by either spouse (jointly or individually) during the marriage (inc. income/wages from labor of either spouse)
ojo w income
working at separate property business –> profit is community property (but profits from sale of yoru SP house are SP)
com property: BOP
the spouse that wants to claim it’s SEPARATE has preponderance BOP
com property: effect
–owned equally by spouses (regardless of who earned it, who has title)
com property: rights
- -present, equal interest in the property
- -either acting alone can manage + control + usu dispose (to same degree as separate)
com property: rights: exception
can’t gift it to yourself
neither spouse can gift it to someone else w’o other spouse’s consent
divorce: general result
CP: 50/50
SP: belongs to each spouse, not divided
quasi-community property: def
1) property acquired in a non CP state that would have been CP if acquired in CA, or
2) property exchanged for such property
mixed character property
property from different “marital property estates” is used to initially acquire another property
result: the (house) is BOTH CP and SP
marital property estates: def
1) com estate
2) H’s sp
3) wife’s SP
