Community Property

Question 1

Does California recognize common-law marriages?

Answer 1

No, they are not permitted in CA. However, under the full faith and credit clause, common law marriages from other states

Question 2

What grounds make a marriage void?

Answer 2

Incest, Failed to fully comply as per a contract, Generally bigamy but there are exceptions.

Question 3

What makes a marrage voidable?

Answer 3

Bigamy exception, lack of consent, misrepresentation, fraud that voids consent

Question 4

What is the putative Spouse Doctrine

Answer 4

Protects the innocent souse where they married in good faith.

Question 5

What is Quasi-Marital property?

Answer 5

Property that would have been community property for a Putative Spouse

Question 6

What are invalid aspects of a premarital agreement?

Answer 6

It may not govern child support or encourage divorce.

Question 7

What is required for a prenuptial agreement?

Answer 7

Contract laws apply, except no need for consideration.

(1) in writing (statute of frauds)
(2) signed by both parties

Question 8

Required for voluntariness in a premarital agreement

Answer 8

(1) represented by an independent legal counsel or waived in a separate document.
(2) the party had not less than seven days between the time the agreement was first presented and the time the agreement was signed.
(3) the party, if unrepresented, was fully informed of the terms and basic effect of the agreement and the rights and obligations he was giving up, and was proficient in the language in which the agreement was written,
(4) no duress, fraud or undue influence,
(5) Anything else the court finds relevant.

Question 9

What is transmutation

Answer 9

Changing from CP to SP or SP to CP

Question 10

What is required for transmutation?

Answer 10

After Jan 1, 1985, must be in writing with an express declaration by the adversely affected spouse.

Exception for gifts:
1. Between spouses
2. one spouses exclusive use
3. not a substantial value

Question 11

Is a degree CP?

Answer 11

No

Question 12

Is Buisness goodwill CP?

Answer 12

It can be if it was aquired as CP

Question 13

How is a Tort Settelment distriibuted?

Answer 13

It is SP if the injury occurred before the marriage and CP if the injury occurred during the marriage.

However, at divorce, a court will award it to the injured spouse if not commingled, unless justice demands otherwise. Then they can give up to 50% to the noninjured spouse.

Question 14

When does the Community End

Answer 14

The community ends when there is a complete and final break. Evidenced by:
1. At least one spouse has expressed intent
2. the spouse’s conduct is consistent with the intent to end the marriage

Question 15

What are the methods of tracing?

Answer 15

Exhaustion & Direct Tracing

Question 16

What is exhaustion?

Answer 16

In order to trace by exhaustion, the SP proponent must show that the CP funds were exhausted therefore requiring the use of SP.

Question 17

What is direct tracing?

Answer 17

In order to establish direct tracing, the SP proponent must show:

1. There were sufficient SP funds
2. The Proponent intended to use SP funds

Question 18

What is the presumption on title?

Answer 18

At death, the property is presumed to be the person on title, but this does not apply to divorce.

Question 19

Is a spouse works in an SP business, how do the courts determine labor value?

Answer 19

Either Pereira or Van Camp

Peireira if the increase in value of the SP business is primarily due to the spouses personal skills and effort

Van Camp is increase is not

Question 20

How does the Pereira Formula work?

Answer 20

SP = Initial SP + (Fair return x Years)

CP share = Fair Market Value - SP

Question 21

How does the Van Camp approach work?

Answer 21

CP = Value of service - expenses paid from the business

SP Share = Fair Market Value - CP