Flashcards in Community property Deck (52):
what are the presumptions that arise from taking title in joint and equal form?
Property acquired during marriage in joint and equal form is presumptively CP.
lucas and anti lucas rules.
how can you tell if title is taken in joint and equal form?
if the title list both names ( harry and wanda smith)
when does lucas apply?
when does anti lucas apply?
what is the lucas rule?
under lucas, there is no
(1) SP ownership interest
(2) no reimbursement
what is the anti lucas rule?
(1)there is no SP ownership interest unless there is an express statement in the deed that property is SP, or written agreement that property is SP.
(2) reimbursement allowed for DIP contributions
what if property is not taken in joint form?
lucas does not apply.
what document does joint form have to be taken in?
in title document or deed. boot receipt.
what is the rule for installment purchase pre-marriage with debt paid down with CP post marriage?
we use the pro ration rule?
reduced principal by CP/ purchase price.
when do we use the pro ration rule?
when spouse has installment purchase before marriage, payment with CP funds after marriage.
what rule do we use for a whole life insurance policy?
what rule do we use for a term life insurance policy?
last premium determines the character.
what rule do we use for community funds used to improve sp?
reimbursement but no ownership rights.
greater of cp expenditure or increase in value
what about when other spouse uses community funds to to improve sp?
argue both reimbursement (gift) and no reimbursement
what is the family expense presumption?
expenditures for family expenses (food, house, clothing, recreation) were made with community funds.
what are two accounting methods?
2. direct tracing
what is exhaustion?
when you show that all community funds have been exhausted through using family expense presumption
what is direct tracing?
1) that sufficient separate funds were available
2) intent to use sp funds to buy the asset.
for business owned before marriage what test do we use?
2. Van Camp
what is the pereira test?
think personal skills, time, and effort were main reason why company grew.
what is the formula for pereira?
value at time of marriage plus interest, rest is community property.
get more cp than van camp
what is the van camp test?
is it a valuable company? spouses skill was less of a factor.
what is the formula?
value community labor (minus expenses) the rest is SP.
what is the rule for pension benefits?
# of years worked during marriage / # of years worked to get retirement.
what is spouse is not eligible yet at divorce?
1. if and when received, spouse gets share
2. cash out the spouse awarding other assets
what is the rule for disability payments and workers compensation?
it is wage replacement.
benefits are classified according to when received not when earned.
so while marriage it would be CP but after it wouldn't.
what is the rule for severance pay?
no clear rule
argue both for sp (replaces future earnings) and cp (arose from employment during marriage).
for options given during marriage but does not vest until after marriage?
we use the proration rule to figure out what is CP and the primary intent of the employer in granting the option to determine SP.
What is the marriage of hug?
when company is trying to reward spouse for past services.
what is the formula of marriage of hug?
years of Employment Date to community ended / years employment to date option becomes exerciseable
What is the marriage of nelson?
when company is trying to encourage spouse to stay with company.
What is the formula for marriage of Nelson?
year from option are granted to date community ends / years from option to date option becomes exercise able
what is the rule for education expenses?
can get reimbursement:
1. for the cost of education
2. if it enhanced spouses earning capacity
what is the defense for education expenses?
if community has benefitted from degree for 10 years there is no reimbursement.
if spouse also received a cp-funded education.
what about loans taken out for education?
assigned solely to the party who incurred it.
what is the rule for torts when other spouse is the tortfeasor?
the property is SP, you don't want spouse to benefit for his wrongful act.
what is the rule for torts when third party is the tortfeasor?
the tort recovery is CP.
after divorce the property will be awarded entirely to injured spouse.
after death the property will be be treated as CP.
if can be traced and was not already spent.
What is the rule for torts when spouse is the tortfeasor?
the community is subject to tort liability of either spouse.
look to act of benefit to see if CP is taken before spouse's SP. The other spouse's SP is never liable.
what happens if tort committed was while performing an act for the community?
then you take CP first and then SP.
what powers do spouses have in marriage?
the management power - each spouse has equal control over CP and has full power to buy or sell CP and contract debts without consent.
what are the exceptions management powers?
1. Cant gift CP for nothing during lifetime.
2. Personal Belongings used in personal dwelling without written consent of other spouse. voidable at any time.
3. Business personal property, must get consent from others.
4. For sales of real property need joinder of both spouse.
is there a statute of limitations for sale of real property?
1 year. If buyer knew or should've known of mistake, there is no SOL.
what happens if loan is taken out during marriage?
community property is liable because under equal management powers, either spouse can into contracts and incur debt.
what happens if loan its taken out before marriage, can the earnings of a non debtor spouse be reached?
No not if in separate account (which other spouse has no right of withdrawal)
and not commingled with other CP funds.
what happens if loan its taken out before marriage, can the SP of a non debtor spouse be reached?
No, not personally liable
when is spouse personally reliable (SP) for other's debt?
Contract for necessities.
each spouse has a duty to support the other spouse and children.
what is the community property rule?
Quasi Community Property - property acquired while domiciled in a non community state, which would have been classified as community property had it been acquired under the same circumstances in CA.
how is quasi community property treated?
Just like Community Property. Divided equally in kind. If its a property in another state, we give the property to spouse and offset it with other assets of equal value.
when can quasi community property questions arise?
1. property acquired in another state
2. Putative Spouse.
are common law marriages recognized in CA?
No unless common law marriage was validly contracted in other state.
what is a putative spouse?
relationship where party reasonably believes that they were lawfully married.
this is considered QMP, quasi marital property.