Community Property

Question 1

What are the options?

Answer 1

-community property
-quasi-community property
-separate property

Question 2

Division

Answer 2

Each spouse co-owns community and quasi-community property 50/50

Separate property according to traditional property law rules

Question 3

Generic community property definition

Answer 3

Property that came in during the marriage while the spouses lived in California

Question 4

Quasi-community property definition

Answer 4

Property that came in during the marriage before the spouses lived in California

Question 5

Separate property definition

Answer 5

Property that’s neither community property nor quasi-community property

Question 6

Personal injury recovery against third-party tortfeasor, classification in case of spouse’s death?

Answer 6

According to when the cause of action arose.

Question 7

Personal injury recovery against other spouse

Answer 7

Separate property

Question 8

Retirement pensions and severance pay

Answer 8

Community property unless no part of them were earned during the marriage

Question 9

Disability pay and worker’s comp.

Answer 9

First ask, what pay is this intended to replace?
Then ask, how would we classify that pay?

Question 10

Stock options

Answer 10

First ask, did the employer give them as comp for past work or to encourage the employee to stay in the future.

If for past work, community property = (time between start of employment and exercise of options that they were married)/(time between start of employment and exercise of options). Rest is separate property

If to encourage future work = (time from award of option to end of community)/(time from grant of options to when they became exercisable)

Question 11

Degrees

Answer 11

Separate property.

Question 12

Term life insurance policy

Answer 12

Whichever community made the last payment

Question 13

Whole life insurance policy

Answer 13

Apportioned according to payments

Question 14

What’s necessary for a pre-nup agreement to overwrite public law community property rules?

Answer 14

compliance with the statute of frauds, although consideration isn’t necessary

Question 15

What are agreements overwriting community property public law rules and made during marriage called?

Answer 15

Transmutations.

Question 16

Requirements for a valid transmutation.

Answer 16

1. made in a written express declaration that is consented to or accepted by the spouse whose interest is adversely affected.
2. expressly declare that a change in the ownership of property is being made.

Question 17

Jointly titled property

Answer 17

Marriage ends with death = irrebuttably presumed community property absent an agreement

Marriage ends with separation = rebuttably presumed community property

Exception: a jointly held bank account, there you trace the funds

Question 18

What is exhaustion tracing?

Answer 18

Presumed that the money was community property money unless community piggy banks at the purchase time were empty

Question 19

What is direct tracing?

Answer 19

Presumed community property unless proponent of separate property can show:
(1) there were sufficient separate funds available for the purchase, and
(2) he intended to use those separate funds to purchase a separate property asset.

Question 20

Non-monetary property bought with money from a jointly-held account, both direct and exhaustion tracing point to same spouse as source.

Answer 20

That spouse’s separate property.

Question 21

Non-monetary property bought with money from a jointly-held account, both direct and exhaustion tracing point to different spouses as source

Answer 21

Community property.

Question 22

Non-monetary property bought with money from a jointly-held account, tracing doesn’t give a definitive answer.

Answer 22

Community property.

Question 23

Non-monetary property money used to buy came from an account not jointly held but filled with community property money.

Answer 23

Community property.

Question 24

Non-monetary property money used to buy came from an account not jointly held and filled with separate property money.

Answer 24

Separate property

Question 25

Non-monetary property money used to buy came from an account not jointly held, but can’t tell whether the money in it is community property or separate property.

Answer 25

Pretend the non-monetary property IS money that came in at the time the non-monetary property came in, and use that analysis to decide.

Question 26

Business owned before the community started

Answer 26

Use either Van Camp accounting or Pereira accounting.

Question 27

Test for whether to use Van Camp accounting or Pereira accounting.

Answer 27

Pereira should generally be used when management by the spouse was the primary cause of the growth or productivity of the initially separate business. Van Camp should generally be used when the character of the separate business is largely responsible for its growth or productivity.

Question 28

Van Camp accounting test

Answer 28

1. the manager’s services are valued at the going market salary for such services.
2. Then family expenses that were paid from the business earnings are subtracted from the value of the manager’s services.
3. The remainder, if any, represents the community property portion of the business.
4. The rest of the business is the separate property of the managing spouse.

Question 29

Pereira accounting

Answer 29

1. begin with the business’s value at time marriage community started
2. (that value)(1 + (.1years)) = separate property
3. community property = (business’s value at end of community) - separate property

Question 30

Improvements to real property

Answer 30

not factored in

Question 31

When does federal law preempt California community property doctrine

Answer 31

1. property right recognized under state law conflicts with the express terms of federal law
2. the state law causes sufficient injury to federal objectives

Question 32

Homestead land

Answer 32

federal homestead law preempts

Question 33

Armed forces life insurance benefits

Answer 33

federal law preempts. The servicemember may designate whoever they want as the beneficiary.

Question 34

US Savings Bonds

Answer 34

Under United States Treasury Regulations, when either co-owner of a savings bond dies, the survivor is the sole and absolute owner.

Question 35

Social Security Benefits

Answer 35

Social security law preempts.

Question 36

Railroad Retirement Benefits

Answer 36

Federal Railroad Retirement Act provisions making the retired worker the owner of his pension preempt state law community property division of those benefits to the extent those benefits parallel social security benefits.

Question 37

VA disability benefits

Answer 37

federal law preempts

Question 38

From when to when does the economic community run.

Answer 38

begins at marriage and ends at one spouse’s death or on the date of separation.

Question 39

When is the separation date?

Answer 39

date upon which you have both:
(1) a spouse has expressed an intent to end the marriage to the other spouse, and (2) conduct consistent with that intent.

Question 40

Non-monetary property bought with money from a jointly-held account, both direct and exhaustion tracing point to same spouse as source.

Answer 40

That spouse’s separate property.