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Flashcards in Community Property Deck (33):
1

Topics? (4)

(Community Property?)

  1. Framework for Determining Characterization of Asset
  2. Definitions
  3. Marital Status
  4. When Does the Economic Community End?

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Four questions?

(Community Property?: Framework for Determining Characterization of Asset)

  1. When Was the Asset Acquired?
  2. How Was the Asset Acquired?
  3. Are There Any Legal Presumptions That Affect the Asset's Character?
  4. Did Subsequent Actions by Either Spouses Change the Asset's Character?

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Three terms?

(Community Property?: Definitions)

  1. Community Property (CP)
  2. Separate Property (SP)
  3. Quasi-Community Property (QCP)

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Structure?

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(Community Property?: Marital Status)

  1. Legal Marriage
    1. Legal Capacity of Both Parties 
    2. Witnessed Ceremony of Marriage 
    3. Issuance of Marriage License 
  2. Invalid Marriage
    1. Due to Bigamy 
    2. Incest 
    3. Noncompliance with Law, OR 
    4. Prior Invalid Divorce
  3. Registered Domestic Partners
    1. Eligible Parties? 
      1. Same-Sex Couples, OR 
      2. Elderly Opposite-Sex Couples Receiving Social Security Benefits 
    2. Applies Retroactively
      1. 1/1/2000
  4. Putative Spouse
    1. Effect of Putative Spouse = Quasi-Marital Property
      1. Revocation of Putative Spouse Status
        1. Meretricious Spouse = Unmarried Co-habitants
    2. Estoppel
    3. Decedent Leaves Both Putative Spouse & Legal Spouse = Both Share Equally
      1. Legal Spouse Deceased = Putative Spouse is Decedent's Surviving Spouse
    4. Domestic Partnerships
  5. Property Relations of Persons Not Legally Married 
    1. Marvin Case
    2. Property Acquired Outside the Marital Relationship
      1. Exception: Common Law Marriages of Other States

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Structure?

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(Community Property?:  When Does the Economic Community End?)

  1. Permanent Physical Separation
  2. Intent Not to Resume Marital Relations
    1. Intent Not to Resume by One Party Sufficient
    2. Factual Question
  3. Facade of a Martial Relationship
  4. Effect of End of the Economic Community

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Structure?

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(Presumptions)

  1. Community Property
    1. General Presumption
    2. Rents, Issues and Profits Thereof
  2. Separate Property
    1. Property Owned by Either Spouse Before Marriage 
    2. Property Acquired During Marriage By
      1. Inheritance 
      2. Bequest, OR 
      3. Devise 
    3. The Source Rule
    4. Rents, Issues and Profits Thereof
    5. Burden of Proof
  3. Quasi-Community Property (QCP)
  4. Commingled Assets
    1. Jointly Held Bank Accounts
  5. Earnings While Permanently Living Separate & Apart
  6. Presumptions Inferred from Title

7

Topics? (9)

(Difficult to Classify Assets)

  1. Business Owned Before Marriage Substantially Increases in Value During Marriage
  2. Pension Benefits
  3. Disability Retirement Benefits or Workman's Camp Benefit
  4. Severance
  5. Military Retirement
  6. Stock Options
  7. Goodwill of a Professional Practice
  8. Educational Expenses
  9. Personal Injury Award (Tort Liability)

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Structure?

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(Difficult to Classify Assets: Business Owned Before Marriage Substantially Increases in Value During Marriage)

  1. Van Camp = Valuable Company or Asset
    1. Substantial Salary & Large Bonuses
    2. Formula
      1. Community Component
  2. Pereira = Personal Skills & Effort
    1. Formula 

9

Structure?

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(Difficult to Classify Assets: Pension Benefits)

  1. Proration Rule
    1. Numerator = # of Years Of Service While Married 
    2. Denominator = # of Years Of Employment Until Retirement
  2. Form?
    1. "When & If Received" Decree
    2. Cash Out
      1. Note:
    3. Retain Jurisdiction Until Pension Vests
  3. Eligible for Retirement at Time of Divorce but Elected Not to Retire
  4. No Divorce but Death of Nonparticipant Spouse = No Devisable Interest

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Structure?

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(Difficult to Classify Assets: Disability Retirement Benefits or Workman's Camp Benefit)

  1. Choice of Disability or Retirement Benefit

11

Structure?

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(Difficult to Classify Assets: Severance)

  1. SP Authority
  2. CP Authority

12

Structure?

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(Difficult to Classify Assets: Military Retirement)

  1. Uniformed Services Former Spouses Protection Act
    1. Regular Military Retirement = Yes 
    2. Military Disability Retirement = No 

13

Structure?

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(Difficult to Classify Assets: Stock Options)

  1. Proration Formula
    1. Primary Intent of the Employer = Reward Past Services (Marriage of Hug)
      1. Numerator = # of Years From Date of Employment To End of Economic Community 
      2. Denominator = # of Years From Date of Employment to Date Options Become Exercisable 
    2. Primary Intent of the Employer = Future Retention of Employee (Marriage of 
      Nelson)
      1. Numerator = # of Years From Date Options Granted to End of Economic Community 
      2. Denominator = # of Years From Date Options Granted to Date Options Become Exercisable 

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Structure?

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(Difficult to Classify Assets: Goodwill of a Professional Practice)

  1. Definition
  2. Value? 
    1. Expert Witness Testimony, OR 
    2. Capitalize Excess Earnings Attributable to Goodwill
  3. Buy-Sell Agreement = Not Conclusive

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Structure?

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(Difficult to Classify Assets: Educational Expenses)

  1. Reimbursement
  2. Defenses to Reimbursement 
    1. Substantial Benefit
    2. Reciprocal Community Funded Education, OR 
    3. Education Offsets Need for Spousal Support
  3. Debt Assigned to Spouse Who Incurred Educational Loans

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Structure?

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(Difficult to Classify Assets: Personal Injury Award (Tort Liability))

  1. Other Spouse Tortfeasor
    1. Policy
  2. 3rd Party Tortfeasor 
    1. Death
    2. Divorce or Legal Separation
      1. Reimbursement
  3. Community Liability for Spouse Tortfeasor
    1. Primary Source of Payment?
      1. Performing an Act for the Benefit the Community
        1. CP 
        2. Tortfeasor's SP 
      2. Not Performing an Act for the Benefit the Community
        1. Tortfeasor's SP 
        2. CP
      3. Non-Tortfeasor Spouse's SP 

17

Three Topics?

(Source)

  1. Property Acquired Before 1975: Married Women's Special Presumption
  2. After 1974: "To H & W" Creates Community Property Title
  3. Various Presumptions that Arise from Taking Title "In Joint & Equal Form" 

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Structure?

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(Source: Property Acquired Before 1975: Married Women's Special Presumption)

  1. Presumption Arises in 3 Situations Prior to 1975
    1. Title Taken in Wife's Name Alone
    2. Title Taken in Both Names But Not in joint Tenancy Nor as Husband & Wife
      1. Tenants in Common 
        1. H's 1/2 = CP 
        2. W's 1/2 = SP
    3. Title Taken in Wife's Name with 3rd Party
  2. Irrebuttable Presumption Against 3rd Party Bona Fide Purchasers (BFPs)
  3. Rebuttable Presumption Between the Parties (H & W)

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(Source: Various Presumptions that Arise from Taking Title "In Joint & Equal Form")

  1. Joint Tenancy
    1. Prior to 1985 = Joint Tenants
      1. Intent of CP 
      2. Writing Stating CP 
    2. Post 1985 = CP
      1. Presumed CP
  2. Marriage of Lucas - DEATH ONLY
    1. Presumptions of Deceased Spouse's Estate 
      1. Joint & Equal Form
      2. H & W as Joint Tenants
      3. As Community Property with Right of Survivorship
  3. Post 1984 Anti-Lucas Statutes (Modified Lucas Rule) - Divorce Only 
    1. Division of Property on Divorce or Legal Separation
      1. CP Presumption Rebutted Only By
        1. Express Statement in the Deed, OR 
        2. Written Agreement by the Parties 
      2. Right to Reimbursement
        1. Principal Payments on the Mortgage 
        2. Improvements 
        3. Down Payments 
      3. Reimbursement Can Not Exceed Net Value of Property

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Structure?

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(Actions - By Agreement & By Conduct: By Agreement)

  1. Pre-Marital Agreements 
    1. Requirements 
      1. Must Be in Writing (Statute of Frauds) 
        1. Exceptions 
          1. Oral Agreement Fully Executed
          2. Estoppel Based on Detrimental Reliance
      2. Signed by Both Parties 
    2. What Can You Agree To?
      1. Limiting Child Support = Prohibited
      2. Limiting Spousal Support = Not Per Se  Unenforceable
        1. Not Represented by Independent Legal Counsel, OR 
        2. Unconscionable at the Time of Enforcement 
    3. Defenses to Pre-Marital Agreements 
      1. Not Voluntarily Signed
        1. Represented by Independent Legal Counsel or Voluntarily Waived
        2. 7-Day Cooling Off Period
        3. Fully Informed in Writing & Language in Which Proficient
      2. Unconscionable
        1. Matter of Law
      3. Tends to Promote Divorce
  2. Marital Agreements (aka Transmutation)
    1. Agreements Before January 1, 1985 = Oral Transmutation OK
    2. Agreements On or After January 1, 1985 
      1. Writing Required
        1. Exception: Gifts of Tangible Property of Personal Nature
      2. Signature of Adversely Affected Party
      3. Expressly State Ownership Change
    3. Statement in Will or Irrevocable Trust Inadmissible Prior to Death

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Structure?

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(Actions - By Agreement & By Conduct: By Conduct)

  1. Mortgage Payments
    1. Proration Rule (aka Moore Rule)
      1. Numerator = Principal Debt Reduction Attributable to Community Funds 
      2. Denominator = Purchase Price 
    2. May Be Considered a Gift by the Community
  2. Life Insurance Policy (Investment Feature)
    1. Numerator = # of Premiums Paid with Community Funds 
    2. Denominator = Total # of Premiums Paid 
  3. Term Insurance Policy (No Investment Feature)
  4. Feathering Own Nest = Community Funds Used by One Spouse to Make Improvements on That Spouse's SP 
    1. Fixtures Doctrines
    2. Community Reimbursement Claim = Greater of Cost or Enhanced Value
  5. Community Funds Used by One Spouse to Make Improvements to the Other Spouse's SP
    1. Gift
    2. Reimbursement
  6. Commingled Bank Accounts
    1. CP Unavailable
      1. Two Approaches 
        1. Exhaustion
        2. Direct Tracing
    2. NOTE:
  7. SP Used on Family Living Expenses
    1. Family Expense Presumption 

22

Topics? (7)

(Management & Control)

  1. Business Exception
  2. Personal Belongings Exception
  3. Conveyance of Community Real Estate
  4. Transfer or Encumber CP
  5. Gifts of CP 
  6. Fiduciary Duties of Spouses = Highest Good Faith &  Fair Dealing
  7. Contract Liability

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Structure?

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(Management & Control: Business Exception)

  1. Managing Spouse Can Act Alone in All Transactions
  2. Managing Spouse Must Give Other Spouse Prior Written Notice of Any Sale, Lease, or Encumbrance
  3. Effect of Failure to Give Notice

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Structure?

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(Management & Control: Personal Belongings Exception)

  1. Written Consent of Other Spouse Required
  2. Effect of Failure to Get Written Consent = Transaction Voidable by Other Spouse at Anytime

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Structure?

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(Management & Control: Conveyance of Community Real  Estate)

  1. Joinder of Both Spouses Required
  2. Effect of Failure to Get joinder of Both Spouses 
    1. BFPs = One Year Statute of Limitations to Set Aside 
    2. Non-BFPs = No Statute of Limitation

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Structure?

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(Management & Control: Transfer or Encumber CP)

  1. Spouse's One-Half Interest in CP
    1. Exception: Family Law Attorney's Real Property Lien
  2. Only the Entire Interest in CP May Be Transferred or Encumbered 

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Structure?

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(Management & Control: Gifts of CP)

  1. During Lifetime of Gift-Giving Spouse
  2. Divorce = Misappropriation of CP
  3. After Death of Gift-Giving Spouse
    1. Recover From Whom? 
      1. The Donee, OR
      2. The Deceased Spouse's Estate 
    2. CP Life Insurance Policy Assigned to 3rd Party
  4. US Government Bonds = Federal Preemption

28

Structure?

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(Management & Control: Fiduciary Duties of Spouses = Highest Good Faith & Fair Dealing)

  1. Presumption of Undue Influence
  2. Grossly Negligent & Reckless Investment = Breach of Fiduciary Duty 

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Structure?

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(Management & Control: Contract Liability)

  1. Premarital Debt
    1. Exception: Non-Debtor Spouse Earnings
  2. Debts Incurred During Marriage 
    1. Community Credit Presumption
    2. Controlling Test in CA = Primary Intent of the Lender
    3. Community Assets 
      1. General Standing in the Community 
      2. General Reputation 
      3. Credit-Worthiness 
    4. Contracts for Necessaries
      1. Reimbursement Claim
      2. Separated & End of the Economic Community
  3. Quasi-Community Property
  4. Post Divorce
    1. Personally Liable, OR
    2. Assigned the Debt by Cour

30

Topics? (3)

(Divorce & Death)

  1. Community Property
  2. Quasi-Community Property
  3. Decedent Leaves Both Legal Spouse & Putative Spouse

31

Structure?

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(Divorce & Death: Community Property)

  1. Divorce
    1. Valuation of CP
    2. Disparity of Earning Power 
      1. Spousal/Child Support = Yes
      2. Division of CP = No
    3. Pro-Rata
      1. Court Developed Economic Circumstances 
        1. Family Residence
        2. Stock in Closely Held Business
        3. Pensions Plans/Retirement Benefits
    4. Statutory Exceptions
      1. Misappropriation of CP
      2. GSA Loans & Other Educational Debts
      3. Tort Liability
      4. Personal Injury Award
      5. Negative Community
  2. Death 
    1. No Elective Share Statute in CA
    2. Intestate
      1. Without Issue = All SP
      2. One Issue = 1/2 of SP
      3. Two or More Issues = 1/3 of SP
    3. Restrictions on Testamentary Disposition 
      1. Separate Property
      2. Community Property
      3. Quasi-Community Property
        1. Probate Definition of Quasi-Community Property
      4. Widow's Election
        1. Take Under the Will, OR
        2. Take Against the Will
    4. Debts & Administrative Expense of the Estate

32

Structure?

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(Divorce & Death: Quasi-Community Property)

  1. Divorce
    1. Jurisdiction Over Out-of-State CP & QCP
  2. Death of Acquiring Spouse
    1. Jurisdiction Over Out-of-State CP & QCP
    2. Right to Recover QCP if Inadequate Consideration
  3. Death of Non-Acquiring Spouse

33

Structure?

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(Divorce & Death: Decedent Leaves Both Legal Spouse & Putative Spouse)

  1. Death
    1. Legal Spouse Deceased