Characterizations

Question 1

Community Property basics

Answer 1

Property in marriage is treated as jointly owned unless agreement states otherwise (i.e., is Separate Property)

Equal Management and Control by H and W

Question 2

Characterizing Community Property

Answer 2

Equally owned by H and W

Includes all property that stems from labor/effort of either spouse during marriage

Ownership does not follow title

All property that is not SP is CP

Question 3

Characterizing Separate Property

Answer 3

Property owned before marriage

Property acquired during marriage through gift, devise, or descent
- Includes any rents or profits derived from SP

Basically stuff you already owned, or, received by gratuitous transfer (no labor or effort)

SP stays separate during marriage

Question 4

General Community Property Presumption

Answer 4

Property acquired during marriage is presumed to be Community Property BUT the presumption can be rebutted

Question 5

Overview of Characterization

Answer 5

1. Characterize Property (General Community Property Presumption: if acquired in marriage it is presumably CP)
2. Can Presumption be Rebutted – does it FIT? Trace funds, look for agreements, look for valid transmutation, look at title

Question 6

When does the “Community” start/end?

Answer 6

The community starts when you are married, ends when you are living separate and apart
Separate and Apart: there is absolutely no possibility of getting back together, no counseling, not speaking anymore.

Question 7

What happens to Community Property in divorce?

Answer 7

Divided 50/50 between the spouses

Question 8

What happens to Community Property in death?

Answer 8

Intestate – all CP goes to surviving spouse

Testate – each spouse may devise 50% of CP

Question 9

Common Law basics

Answer 9

Old: Wife can retain title to property at marriage but has no control over it, husband has possession and control

Modern/Reform:
Property is treated as separately owned unless an agreement explicitly says otherwise

Ownership follows title as if they were unmarried

Equitable Jurisdiction: divorce courts are given discretion to fairly distribute property to avoid unjust results (usually 50/50 split bc presumed equitable)

Apply law where couple is domiciled (not where property is located)

Question 10

What happens to SP in divorce?

Answer 10

SP belongs to each respective spouse and is not divided

Question 11

What happens to SP in death?

Answer 11

Intestate – SP goes to surviving spouse if there are no heirs; if there are heirs then spouse splits the SP equally with the heirs

Testate – each spouse may devise 100% of their SP

Question 12

How to determine if it is CP or SP?

Answer 12

Does it FIT? (Funds, Intent, Title)

Funds – trace to source of funds, if the property starts out as SP (or CP), it remains SP (or CP)

Intent – Any agreements made by the parties regarding the property (you can contract around the default rules)
a. Look for whether they jointly titled, if the have a premarital agreement, or valid transmutation

Title – Doesn’t dictate the characterization very often because we don’t want a spouse to sneak off and title something to themselves and get to keep it in divorce

Question 13

What is Apportionment?

Answer 13

When a couple uses both community and separate funds to purchase property, and it is divided accordingly at divorce.

Hypo: $10k lamp bought during marriage, 40% CP and 60% SP. At divorce, SP owner gets $6k and CP is split $2k each.