4) Particular Assets

Question 1

joint bank account

Answer 1

• -presumed to be CP at divorce

- -can overcome by: tracing OR written agreement (not just deposit agreement)

Question 2

business owned by 1 spouse: how starts

Answer 2

1) before marriage

2) during marriage with SP funds

Question 3

SP business: rule

Answer 3

–rents/profits from SP are SP
BUT, time, effort, and labor of spouse during marriage is community asset, profits from the SP business during marriage are from community efforts

Question 4

SP business: how divide profits: ways

Answer 4

1) Pereira

2) Van Camp

Question 5

Pereira: use when

Answer 5

owner spouse’s labor is major source of increase in value

Question 6

Pereira: def

Answer 6

reasonable return on investment. Reimburses separate estate for return on separate capital, everything else is com property

Question 7

Pereira; formula

Answer 7

(SP investment) x legal interest rate x years of business during marriage = SP share of increase
(plus whatever SP put in to start with) – everything else is CP

Question 8

Pereira; result

Answer 8

benefits CP – awards greater amount to community

Question 9

Van Camp: use when

Answer 9

increase in value is due to market forces or nature of capital (not labor of owner-spouse)

Question 10

Van Camp: def

Answer 10

gives com reasonable salary for labors of owner-spouse, but the rest of the profits stay as SP

Question 11

Van Camp: formula

Answer 11

Salary x (years of business/marriage) - any amounts paid for com expenses during years fo business = com share

Question 12

Van Camp: result

Answer 12

usu benefits the SP more

Question 13

Pereira vs VC: which to use?

Answer 13

as above, but courts will select whichever will award substantial justice between the parties

Question 14

SP business that stays SP

Answer 14

was SP and owner spouse spends no labor, but paid someone else to do it out of the SP. All stays SP bc community did not enhance the value

Question 15

CP business that turns SP: scenario

Answer 15

cp business but parties separate

Question 16

CP business tha turns SP: result

Answer 16

apply reverse of VC or Pereira

Question 17

partnership interest

Answer 17

CP if partnership was funded with CP funds

SP if p. was funded with SP funds (but salary = CP)

Question 18

artistic work

Answer 18

if created during marriage, the art and copyright = CP

but if created before, = SP. remember when the labor performed

Question 19

business + prof goodwill: def

Answer 19

intangible asset re reputation

Question 20

business + prof goodwill: rule

Answer 20

CP if earned during marriage

Question 21

business + prof goodwill: tests

Answer 21

1) market sales valuation (price it would command if business were sold), or
2) capitalization of past excess earnings (present value of future stream of income the GW generates)

Question 22

degrees/licenses: rule

Answer 22

SP! (the diploma AND the debt–even if during marriage)

but, reimbursement

Question 23

degrees/licenses: reimbursement

Answer 23

reimbursement available if:

1) community contributed to the edu
2) substantially enhances earning capacity

otherwise, com contribution = gift

Question 24

degrees/licenses: reimbursement: com contributed

Answer 24

tuition, fees, books, supplies, transportation, spl living
NOT ordinary living expenses
*includes repaying premarital loans

can reduce if unjust

Question 25

degrees/licenses: reimbursement: substantially increases earning capacity

Answer 25

presumed substantial benefit if payments made 10+ years before marriage ends (and not substantially bneefits otherwise) no presumption for porfessional degrees / earning capacity -- case by case

Question 26

stock: if SP

Answer 26

then dividends, splits, appreciation, options to purchase more shares are SP (income or appreciation in value of SP is SP)

Question 27

stock: exception

Answer 27

if you spend a ot of time managing your own stock that can be CP labor so then the profits become CP

Question 28

unvested stock options as ee benefit

Answer 28

CP if stock agreement says given for past services + service was during marriage

Question 29

stock options

Answer 29

if vests during marriage, CP if awarded during marriage but vests after separation: prorated (determine share earned during marriage) if awarded before marriage and vest after: SP

Question 30

retirement bens

Answer 30

CP if earned during marriage (regardless of if vested) -- a form of deferred compensation for income during marriage

Question 31

retirement bens: valuation

Answer 31

if partly during marriage and partly before or after, must prorate

Question 32

tetirement bens: time rule

Answer 32

calculated based on time spent at job--prorate based on years worked during marriage vs before/after

Question 33

retirement benefits: contributions

Answer 33

calculate based on amount contributed while married (CP) vs not SP)

Question 34

retirement benefits: how to actually give

Answer 34

if benefit not matured 1) court can retain jurisdiction til retire 2) present value calculated and other spouse gets that or assets of equal value

Question 35

retirement: refusal retire

Answer 35

if ee spouse keeps working but retirement benefits have vested + matured, ex can start getting share

Question 36

early/enhanced retirement bens

Answer 36

even of only offered/accepted after divorce, non-ee can still get share of enhanced bens

Question 37

disability payments

Answer 37

CP if: designed to replace lost/reduced earning capacity to extent to which designed to replace earnigns during marriage SP if: for loss of future earning capacity after marriage OR pain/suffering

Question 38

military/va bens

Answer 38

fed preemption -- must be SP

Question 39

worker's comp/DI

Answer 39

CP if lost earning capacity during marriage (even if received later--depends on when the injury was) SP if earning capacity during unmarried times

Question 40

disability vs retirement election

Answer 40

court won't let you choose disability if sole reason is to detriment the com

Question 41

effect of fed law

Answer 41

preemption, so if there's a fed law like ex ERISA, then state law is preempted

Question 42

severance pay

Answer 42

no clear rule CP if: pay for work while married SP if: for replacing future earnings and after marriage over

Question 43

life insurance (-)

Answer 43

CP: cash-value policy paid for with CP funds | prorate if premiums paid partly from SP

Question 44

life insurance: modern trend: whole life policy

Answer 44

pro rata division based on number of premium payments and which estate paid which

Question 45

term life insurance policies: modern trend

Answer 45

series of divisible ks, final premium payment dictates character (Final Premium Rule)

Question 46

life insurance + death

Answer 46

outside probate estate --> so probate court has no power to partition unless can prove fraud

Question 47

property insurance: approaches

Answer 47

1) follows the characterization of the property it's insuring 2) follows the source of payments for the policy

Question 48

personal injury award

Answer 48

SP if for injury before marriage, or COA arose after separation OR bc of tortious conduct of other spouse CP if COA arose during marriage. courts can do interest of justice, injured spouse must get 1/2+

Question 49

personal injury award: reimbursement

Answer 49

CP can get reimbursement if noninjured spouse paid expenses from SP or CP

Question 50

credit acquisition: test

Answer 50

"intent of the lender"

Question 51

intent of hte lender test

Answer 51

ch of property acquired on credit determined by what the lender is looking to for repayment of loan (SP or CP?) SP only if creditor relied SOLELY on SP when extending credit (and old case "primarily") what did bank look at? down payment, marital income, good credit

Question 52

loan SP --> CP

Answer 52

if started as SP (down payment) can become partially CP and need apportionment, if CP used to pay it down. Moore/Marsden calc. Figure out % paid by CP of the total mortgage to determine what CP gets from appreciation.