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Bar Exam > Community Property > Flashcards

Community Property Flashcards

1
Q

What property is SP?

A
  1. Property acquired before marriage
  2. Property acquired during marriage by gift, devise, or descent
  3. Property acquired during marriage but purchased with separate property funds
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2
Q

What property is CP?

A

Property other than SP that was acquired by either spouse during the marraige

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3
Q

CP Presumption

A

All property owned at divorce is presumed to be CP.

Spouses must provide CCE that a particular asset is SP.

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4
Q

Title to an Asset

A

The name listened on the title to an asset (e.g., name on the deed to land) is not relevant to the asset’s characterization.

EXCEPTION: title is relevant to whether one party intended to make a gift of the asset

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5
Q

X buys a house with SP, but lists both himself and his wife on the deed. Is the house SP or CP?

A

It is SP.

By putting the wife’s name on the deed, X creates a presumption that he intended to give her a 1/2 interest in the house.

Each owns 1/2 as TIC

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6
Q

X buys a house with CP and the deed names as grantee “Wife, as her sole and separate property.” CP or SP?

A

Wife’s SP. Strong evidence of intended gift.

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7
Q

X buys a house with CP and conveys it to himself as SP. SP or CP?

A

CP. One spouse cannot unilaterally gift SP to themselves.

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8
Q

Inception of Title Rule

A

If property is acquired before marriage, it is SP.

EXCEPTIONS:

  1. Pensions
  2. Stock options
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9
Q

If CP and SP is commingled…

A

SP will remain SP if its identity can be traced

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10
Q

Community Out First Presumption

A

When a spouse takes money out of a commingled account, TX courts apply a presumption that the spouse took out CP money, not SP money.

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11
Q

Identical Sum Inference Method

A

Can overcome the community out first presumption if the deposit and withdrawal are:

  1. Close in time and
  2. Close in amount
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12
Q

If an SP asset produced income during that marriage, that income is ____.

A

CP

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13
Q

Trust: “X will receive income generated by interest on the principal of the trust until age 70, and then X will have unrestricted access to the principal of the trust as well.” What is CP and what is SP?

A
  1. Income before 70: SP.
  2. Principal of trust: SP (unrestricted access = gift)
  3. Income after 70: CP
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14
Q

Interspousal Gifts

A

When one spouse makes a gift of her SP to the other spouse, courts will presume this is a gift of both the underlying SP asset and the income produced by it in the future.

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15
Q

Partition and Exchange Agreement

A

Spouses can partition CP into SP by written agreement. If they change a CP asset into an SP asset, they can also convert all future income from that asset from CP to SP.

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16
Q

Mineral Income

A

Minerals from land owned as SP are considered SP.

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17
Q

Appreciation in the Value of SP

A

Appreciation in the underlying value of an SP asset remains SP

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18
Q

Stock Split Characterization

A

Stock splits change the form of the property, but not its character. Not CP if stock is SP.

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19
Q

Stock Dividend Characterization

A

Stock dividends do not change the characterization of the property and are not CP unlike cash dividends, which will be CP even if the stock is SP)

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20
Q

Capital Gains Dividend Characterization

A

Capital gains dividends do not change the characterization of the property and are not CP

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21
Q

Tort Recovery: Injury Before Marriage

A

SP. Inception of Title Rule.

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22
Q

Tort Recovery: Injury During Marriage

A

SP: pain and suffering, loss of consortium, disfigurement

CP: recovery for loss of earning capacity and medical expenses

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23
Q

Tort Recovery: Settlement During Marriage

A

Entire award is CP. Cannot prove assets are SP by CCE when all in one settlement payment.

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24
Q

Adverse Possession

A

If the adverse possessor entered the land UNDER A CLAIM OF RIGHT, his eventual title relates back to the original entry. The inception of title occurs on this date.

If the adverse possessor entered the land as a NAKED TRESPASSER, then he obtains title only when he completes the AP period. The inception of title occurs at this date.

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25
Q

Life Insurance Policy: Before Marriage

A

SP. Inception of Title.

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26
Q

Life Insurance Policy: After Divorce

A

Divorce terminates the ex-spouse’s status as beneficiary under an SP or CP insurance policy UNLESS:

  1. The divorce decree named the spouse as the beneficiary
  2. The policy holder renames the ex-spouse as the beneficiary after the divorce
  3. The ex-spouse was originally named the beneficiary in trust for, or on behalf of, one of the children of either spouse
  4. The life insurance policy is part of an employer pension plan governed by ERISA, in which case federal law preempts the state law rule that divorce terminates beneficiary status
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27
Q

X procures an insurance policy during marriage and designates a friend as a beneficiary. Can he do that?

A

Yes. It is a gift of CP.

The other spouse can be protected with the fraud on the spouse doctrine and recover 1/2 from X’s estate.

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28
Q

Stock Options & The Inception of Title

A

The inception of title rule does not apply to stock options. They are split between the SP and CP pro rata.

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29
Q

Employee Retirement Benefits (Pensions) & Inception of Title Rule

A

Inception of title rule does not apply to employee retirement benefits. Employee retirement benefits are akin to wages.

Retirement benefits earned partially before marriage and partially during the marriage are part SP and part CP, regardless of whether those benefits have vested at the time of divorce.

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30
Q

Definition: Defined Contribution Plan

A

Employee retirement plan that allows employees to reinvest their own money in a retirement account and often encourages employees to do so by matching contributions

E.g., 401(k)

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31
Q

Characterizing Defined Contribution Plan

A

Percentage before marriage = SP
Percentage during marriage = CP
Cash dividends from the plan = CP

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32
Q

Characterizing Defined Benefit Plans

A

If employee is retired, use the Taggart Rule: (years employed during marriage)/(total years employed at the time of retirement) = % CP

If employee is not yet retired, use the Berry Rule

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33
Q

Definition: Defined Benefit Plan

A

provides monthly payments upon retirement that are often dependent on how long you work for the company

Includes military pensions

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34
Q

Taggart Rule

A

In a defined benefit plan, the CP portion is given by the fraction:

(Years employed during the marriage)/(Total years employed at the time of retirement) = % CP

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35
Q

Berry Ryle

A

In a defined benefit plan…

  1. Determine the value of the plan (valued at time of divorce)

(2%) x (years of service) x (average of 3 highest annual salaries)

  1. Determine the CP portion of the plan

(Years employed during marriage)/(total years employed at time of divorce) = % CP

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36
Q

How can the court divide a plan that is not yet paying anything out?

A
  1. “If, as, and when” decree – pay when you get it
  2. QDRD (qualified domestic relations order) – ERISA
  3. Cash out (discount value to present value)
37
Q

Defined Benefit Plan & Predeceasing Spouse

A

ERISA stipulates that a predeceasing spouse has no devisable interest in a defined benefit plan

38
Q

Disability Benefits and Workers’ Compensation

A

Disability benefits and workers’ compensation are characterized the same way as the waged that they are intended to replace

EXCEPTION: military disability benefits are SP because federal law exempts them from characterization and division

39
Q

Definition: Business Goodwill

A

Goodwill that attaches to a business.

40
Q

Definition: Professional Goodwill

A

Goodwill that attaches to a professional, like an excellent lawyer or doctor.

41
Q

Characterization of Business Goodwill vs. Professional Goodwill

A

Business goodwill earned during the marriage is CP.

Professional goodwill is not property and is not characterized as either SP or CP.

42
Q

Characterization of Advanced Degrees

A

Advanced degrees are not property and hence are not subject to characterization

43
Q

Characterization of Debt

A

Debt, like assets, can be community or separate.

Debt incurred during the marriage is community debt unless the creditor agreed to look only to the borrowing spouse’s SP for repayment. (E.g., nonrecourse)

44
Q

Property Acquired in Another State: Divorce

A

Courts split property upon divorce as if the parties always lived in TX.

Quasi Community Property: divided in a just and right manner

Quasi Separate Property: not divided

45
Q

Definition: Quasi Community Property

A

Property that would have been CP had the spouses acquired it while domiciled in TX.

Divorce courts divide quasi community property in a just and right manner.

46
Q

Definition: Quasi Separate Property

A

Property that would have been SP had the spouses acquired it while domiciled in TX.

Divorce courts do not divide quasi separate property.

47
Q

Property Acquired in Another State: Death

A
  1. In a non CP state, a spouse’s salary is her CP
  2. In non CP states, title determines ownership, regardless of when it was purchased.
  3. Property rights do not change when a couple moves to a CP state.
48
Q

A trial court’s determination of a just and right division will only be overturned if…

A

it is manifestly unjust and constitutes an abuse of discretion

49
Q

Factors a court will consider in a just and right division:

A

Spouse’s education, capacities and abilities

Disparity of incomes

Disparity of earning capacity

Relative physical conditions

Relative financial condition and obligations

Disparity of ages

Size of separate estates

Size of the community estate

Length of the marriage

Whether one party has wasted CP

Benefits than an innocent spouse would have received had the marriage continued

Tax consequences of any proposed division

50
Q

Can a court consider a spouse’s fault when determining a just and right division?

A

Maybe.

View 1: Yes.

View 2: It depends. Consider fault only if the other spouse used a fault ground for divorce.

51
Q

How can courts divide an estate with assets that cannot be split or sold easily?

A

Can order periodic payments from the spouse given that property

52
Q

A spouse can receive maintenance in four cases:

A
  1. 10+ year marriage
  2. Family violence
  3. Spousal disability
  4. Child disability
53
Q

To receive maintenance, a spouse must…

A

Lack sufficient property to provide for the spouse’s minimum reasonable needs

Clarifications:

  1. Property = SP + CP from divorce
  2. Obligee does not have to spend down long term assets or incur new debt
  3. Loss of employment or other circumstances that occur after divorce are not grounds to institute a spousal maintenance award
54
Q

Statutory limits on duration of maintenance

A

Maintenance is limited to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for minimum reasonable needs UNLESS the spouse’s ability to do so is substantially or totally diminished because of:

  1. the spouse’s disability; or
  2. the spouse’s duties as the custodian of a young child pf the marriage; or
  3. another compelling impediment to earning sufficient income
55
Q

Maintenance terminates upon…

A
  1. Death of either spouse
  2. Remarriage of obligee
  3. Obligee’s cohabitation with a romantic partner
56
Q

Statutory limits on amount of maintenance payments

A

Lesser of 20% or $5000/month of the obligor’s gross income

57
Q

Definition: Gross Income

A

All sources of income except returns on principal or capital, counts receivable, government assistance such as disability payments, WC, SS, and the like

58
Q

Factors a court can look to when setting the amount of maintenance payments:

A
  1. Each spouse’s ability to provide for their minimum reasonable needs independently
  2. Each spouse’s employment skills, including the time necessary to acquire additional education and training
  3. Duration of the marriage
  4. Age, employment history, earning ability, physical and emotional condition of the spouse seeking maintenance
  5. Effect of child support obligations
  6. Excessive or abnormal expenditures or destruction of CP
  7. Contributions by one spouse to the other’s education, training, and earning capacity
  8. Property brought into the marriage
  9. Contributes of a spouse as a homemaker
  10. Marital misconduct
  11. Any history or pattern of family violence
59
Q

Maintenance: 10+ Year Marriage Statutory Requirements and Limitations

A
  1. Married to the other spouse for 10+ years
  2. Lacks ability to earn sufficient income to provide for the spouse’s minimum reasonable needs

There is a rebuttable presumption that maintenance for a 10+ year marriage is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income or developing skills to provide for the spouse’s minimum reasonable needs.

Statutory Limits on Duration of Payments:

10-20 years of marriage: 5 years
20-30 years of marriage: 7 years
30+ years of marriage: 10 years

60
Q

Maintenance: Family Violence Requirements and Limitations

A
  1. Convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence committed during the marriage against the spouse/child of spouse; and
  2. The offense occurred within 2 years before the date on which a suit for dissolution of the marriage is filed, or while the suit was pending.

Statutory Limits on Duration of Payments:

Under 10 Years: 5 years
Otherwise: See limits for 10+ years

61
Q

Maintenance: Spousal Disability

A
  1. Physical/mental disability preventing spouse from earning sufficient income to provide for minimum reasonable needs
  2. Duration continues as long as eligibility persists
62
Q

Maintenance: Child Disability

A
  1. Marital child suffers from physical/mental disability
  2. Requiring substantial care and person supervision
  3. Preventing caretaking spouse from earning enough to provide for minimum reasonable needs

Duration continues as long as eligibility persists

63
Q

No alimony in TX, but alternatives are…

A
  1. Contractual alimony (periodic payments agreed to in divorce settlement)
  2. Court-ordered temporary payments during divorce proceeding
  3. Future periodic payments for property not easily divided
64
Q

Modification of spousal maintenance award

A

Can be modified downward, not upward, upon a showing there has been a material and substantial change in circumstances

65
Q

Maintenance: Cohabitants

A

Maintenance not authorized between unmarried cohabitants under any circumstances

66
Q

Maintenance: Putative Spouse

A

In a suit to declare a marriage void, a putative spouse who acted in good faith and without knowledge of impediment may be awarded maintenance if otherwise qualified to receive it

67
Q

Reimbursement

A

Secured Debts: reimbursement measured by reductions in principal (not interest)

Improvements: reimbursement measured by enhanced value

Time Toil & Effort: value of the time, toil, and effort beyond that reasonably necessary to maintain the SP MINUS any salary/wages for efforts

68
Q

Use and Benefit Offset

A

Court may find contributing estate has received offsetting benefits that justify denying/reducing reimbursement claim

EXCEPTION: courts cannot offset a reimbursement claim based on use/benefit of primary or secondary residence

69
Q

A spouse has NO reimbursement claim for…

A
  1. Payment of child support, alimony, maintenance
  2. Living expenses of spouse or child of spouse
  3. Nominal contributions of property
  4. Nominal payments toward liability
  5. Student loan payments
  6. Spousal gifts
70
Q

Fraud on the Spouse

A

Excessive and capricious gifts of CP

Factors:

  1. Who got the gift
  2. Size of gift vs. community estate
  3. Whether spouse can be made whole from remaining CP

Presumption of Fraud: one spouse disposes of property unfairly or without knowledge/consent of other spouse
(BOP shifts to donor to show it was fair)

NOTE: some courts hold gift to unrelated person presumptively fraudulent

71
Q

Actual Fraud on the Spouse

A

Donor spouse intended to deceive the wronged spouse and intended to deprive her of her community share

72
Q

Constructive Fraud on the Spouse

A

Donor made gifts of CP but did not intend to deprive/deceive spouse

73
Q

Remedies for Fraud on the Spouse

A
  1. Challenged during left –> gift set aside in entirety
  2. Challenged at death –> gift set aside as to wronged spouse’s 1/2 interest
  3. Divorce/death –> court will calculate reconstituted estate (all property that would have been in the community estate absent the fraud)
    - Divorce –just and right division
    - Death – split 50/50
74
Q

Later Discovered CP

A

Can bring a suit for partition

SOL: 2 years after one former spouse unequivocally repudiates the existence of the ownership interest of the other former spouse and communicates that repudiation to the other former spouse

75
Q

Prenuptial Agreements

A

Can contract on just about everything except child custody/support

Requirements: in writing and signed. Consideration not required

76
Q

Challenging a Prenup

A

Must show:

  1. The party against whom enforcement is sought did not execute voluntarily; or
  2. The agreement was unconscionable when signed AND every element of this 3 point test:
    (a) No fair disclosure (not provided a fair and reasonable disclosure of property/financial obligations of other party)
    (b) Right to disclosure not waived (must be in writing)
    (c) No adequate knowledge (did not have adequate knowledge of other party’s property/financial obligations)
77
Q

Partition and Exchange Agreements

A

Convert current or future CP into SP

Requirements: signed writing. Consideration not required.

Limitation: void re: rights of a creditor whose rights are intended to be defrauded by it

78
Q

Conversion Agreement

A

Convert SP to CP

Requirements: writing signed by both spouses; identify property being converted and specify it’s being converted to spouses’ CP

Limitations:

  1. Must be made during marriage
  2. Must alter characterization of property immediately
  3. Does not affect rights of preexisting creditors
79
Q

Challenging Conversion Agreement

A

Must prove:

  1. Challenging spouse did not sign voluntarily OR
  2. Did not receive fair and reasonable disclosure of legal effect of conversion.

NOTE: disclosure requirement cannot be waived.

80
Q

Drawbacks to Conversion Agreement

A
  1. Subject to just and right division
  2. Lose creditor protection
  3. Lose power of disposition
81
Q

CP Survivorship Agreement

A

CP will become property of the surviving spouse

Requirements: writing signed by both spouses; contain phrase indicating right of survivorship

Limitations: can be revoked by delivering a signed, written revocation to the other spouse

82
Q

Cohabitation Agreement

A

Outline the property rights of unmarried cohabitants

Requirements: in writing, signed by both parties

Limitations: standard k limitations

83
Q

Management Rights

A

Spouse has sole management over:

  1. her SP
  2. Property that would be her SP if she was single (e.g., wages)

Spouses have joint management over:

  1. property purchased with CP
  2. Commingled SMCP
84
Q

Sole Management Community Property

A

If title to a CP asset is taken in only one spouse’s name, there is a presumption that the asset is SMCP

The spouse has the power to manage, control, transfer, encumber, or dispose w/o other spouse’s consent

85
Q

Joint Management Community Property

A

If a CP asset is titled in both names, there is a presumption the property is JMCP

86
Q

Creditors’ Rights: Debt Before Marriage

A

Can access all property the spouse has management over (SP, SMCP, JMCP)

87
Q

Creditors’ Rights: Debt During Marriage, Non-Tortious

A

Creditors can collect from: SP, SMCP, JMCP, but NOT the non-debtor spouse’s SP or SMCP

EXCEPTIONS:

  1. one spouse acted as the agent for the other spouse; both personally liable, and all property can be reached
  2. both spouses personally liable for necessaries (e.g., rent, medical)
88
Q

Creditors’ Rights: Debt During Marriage, Tortious

A

Creditors can collect from tortfeasor’s SP and all CP. The only protected property is the other spouse’s SP.

89
Q

Asset Bought on Credit

A

An asset acquired on credit is presumptively acquired on community credit. The source of funds later used to pay off the credit obligation is irrelevant because ownership is determined at the time the asset is purchased on credit.

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