Attack Outline

Question 1

What is the presumption regarding property acquired during marriage in California?

Answer 1

All property acquired during the marriage is presumptively community property (CP), irrespective of which spouse’s name is on the title.

Question 2

When are earnings or wages deemed community property?

Answer 2

Earnings/wages are deemed CP when earned during the marriage.

Question 3

What types of property are classified as separate property (SP)?

Answer 3

• Property acquired prior to marriage or after separation
• A gift, devisee, or bequest
• Property acquired with separate funds
• Profits earned from separate property

Question 4

How do courts determine the character of any asset?

Answer 4

Courts will trace back the source of funding used to acquire the property.

Question 5

What happens to community property at divorce or death?

Answer 5

All community property is divided equally between the spouses, while a spouse’s separate property remains their own.

Question 6

What is quasi-community property (QCP)?

Answer 6

QCP is property acquired while living in a non-CP state that would have been considered CP if living in California.

Question 7

How is QCP treated at divorce and death?

Answer 7

• At divorce, QCP is treated as CP
• At death, the surviving spouse has a ½ interest in QCP titled in the decedent’s name.

Question 8

What constitutes an illusory transfer?

Answer 8

• Decedent died while domiciled in California
• Consideration of substantial value was not received
• Transfer was made without the surviving spouse’s written consent or joinder
• Decedent retained some interest or control of the property

Question 9

What is the Married Woman’s Special Presumption?

Answer 9

It gives the wife a presumption of separate property if the title is taken in her name alone and the property was acquired before 1975.

Question 10

When does the economic community end?

Answer 10

The economic community ends when either spouse dies or there is permanent physical separation.

Question 11

What is a putative spouse?

Answer 11

A putative spouse is one who has a good faith reasonable belief that he/she is married.

Question 12

What rights does a putative spouse have?

Answer 12

Entitled to quasi-marital property (QMP), treated like CP at death or divorce.

Question 13

Under what conditions can unmarried cohabitant agreements be enforced?

Answer 13

Courts may enforce express agreements between cohabitating couples that are not expressly based on sexual acts.

Question 14

What are the rights and duties of spouses regarding property management?

Answer 14

Each spouse has equal rights to manage and control community property.

Question 15

What is required for personal property transfers involving community property?

Answer 15

Written consent is required if personal property is transferred for less than fair and reasonable value.

Question 16

What fiduciary duties do spouses owe each other?

Answer 16

A duty of the highest good faith and fair dealing, and neither shall take unfair advantage of the other.

Question 17

What happens when property is acquired with commingled funds?

Answer 17

CP and SP are apportioned based on their respective contributions.

Question 18

What does the Anti-Lucas statute state regarding jointly titled property?

Answer 18

Jointly titled property acquired by a married couple is presumptively CP, but any SP used for purchase is entitled to reimbursement.

Question 19

How are personal injury awards classified if the cause of action arose during marriage?

Answer 19

They are classified as community property.

Question 20

How are disability and workers’ compensation payments treated?

Answer 20

If meant to replace marital earnings, treated as CP; if meant for post-marriage earnings, treated as SP.

Question 21

What methods do courts use to determine interests in separate property businesses enhanced by community labor?

Answer 21

• Pereira method
• Van Camp method

Question 22

What is goodwill in a business context?

Answer 22

The intangible value of the business’s reputation beyond skill and value.

Question 23

How is the community property interest in whole life insurance determined?

Answer 23

Using the buy-in rule, which apportions CP value based on premium payments made with CP.

Question 24

What is the rule regarding stock options awarded during marriage?

Answer 24

They are entirely CP only if they become exercisable during marriage.

Question 25

What is the general rule regarding personal credit during marriage?

Answer 25

Personal credit of the spouse belongs to the community during marriage.

Question 26

What is reimbursement entitlement under the Anti-Lucas statute?

Answer 26

SP used to acquire jointly titled property is entitled to reimbursement for down payments, payments for improvements, and principal payments.

Question 27

What is a transmutation in marital property law?

Answer 27

An agreement between spouses to change the character of an asset from SP to CP or vice versa.

Question 28

What are the requirements for a valid prenuptial agreement?

Answer 28

* In writing * Signed by both parties * Not unconscionable, involuntary, or encouraging divorce

Question 29

What is the significance of creditor rights in community property?

Answer 29

Generally, creditors may reach community property to satisfy debts.

Question 30

What is required for a prenuptial agreement to be deemed voluntary?

Answer 30

All of the following must be satisfied: * Spouse represented by independent counsel (or expressly waived it) * The party had not less than 7 days to review agreement * Proficient language used in the agreement * The agreement was not executed under duress, fraud, influence, or lack of capacity. ## Footnote These criteria help ensure that both parties understand and agree to the terms without coercion.

Question 31

What is the general rule regarding creditors reaching community property (CP)?

Answer 31

Creditors may reach CP to satisfy debts incurred before or during the marriage, including debts of child or spousal support. ## Footnote This includes obligations that arise from financial responsibilities shared during the marriage.

Question 32

Under what conditions are a non-debtor spouse's earnings protected from creditors?

Answer 32

Earnings are protected if: * The debt occurred before the marriage * The earnings were held in a separate account to which the debtor did not have access or no commingling occurred. ## Footnote This provision ensures that the non-debtor spouse's financial independence is maintained.

Question 33

What can generally be reached to satisfy a person's personal debts?

Answer 33

A person’s separate property (SP) can only be reached to satisfy their personal debts, including debts incurred after marriage. ## Footnote This emphasizes the distinction between community and separate property in debt obligations.

Question 34

What are the exceptions to the general rule about creditors reaching separate property?

Answer 34

Exceptions include: * Necessities: Community is obligated to pay for a spouse’s necessities during marriage. * Tort liability: If debtor was acting to benefit the community, then CP must be used before SP. ## Footnote Necessities refer to basic needs such as food, shelter, and medical expenses.

Question 35

Can creditors reach separate property awarded to a spouse after divorce?

Answer 35

No, creditors cannot reach SP awarded to a spouse after divorce unless: * That spouse incurred the debt * Spouse was assigned debt in court. ## Footnote This protects the financial interests of spouses post-divorce.

Question 36

What is the general rule for the distribution of community assets and debts upon divorce?

Answer 36

Each spouse gets ½ of each community asset unless the court determines a different division is required in the interests of justice. ## Footnote This rule aims to ensure equitable distribution of shared assets.

Question 37

What are some exceptions that may apply to the division of community assets?

Answer 37

Exceptions include: * Separate debt: Debt incurred not for the community’s benefit. * Educational debts: Assigned to the spouse who received the education. * Tort liabilities: Assigned to the tortfeasor spouse if the liability was not for the benefit of the community. ## Footnote These exceptions account for individual contributions and responsibilities.

Question 38

Who may be awarded the family home upon divorce?

Answer 38

The family home may be awarded to the person who is given custody of the minor children. ## Footnote This consideration is often made to provide stability for the children post-divorce.