community property Flashcards
CONCLUSION
In conclusion,
the condo is CP and subject to equal division,
(or equally divided)
the bank account is CP and subject to equal division,
the rental property is CP and subject to equal division
unless the court finds that it should deviate from this rule because of Wanda’s breach of her fiduciary duty,
and the hospital bill, despite being Wanda’s separate debt,
is a necessary of life which Harry may be required to pay for with CP and/or his SP.
Before start writing..
Because H and W married and resided in CA, CA law applies.
Characterization of property as either CP or Sp depends on…
A spouse’s effort , skill and industry during marriage is ..
Characterization of property as either CP or Sp depends on…
1)legal presumption affecting the property
the burden is on the spouse opposing SP to defeat the CP presumption,
2)trace the source of the funds used to aquire the property
The fact that the @ were put into an account in H’s name doe not change the fact that the funds are community propety.
3)any actions of the parties that may have changed the character of the property
short: Property purchased during marriage is presumed CP unless that presumption is be rebutted through tracing the source or other mean to show that it was in fact SP.
* There are no facts to indicate that the partties changed the character of the mirror and therefore the CP presumption is controlling*
* Using Cp to pay the mortgage on SP did not alter the character of the townhouse from SP to CP*
A spouse’s effort , skill and industry during marriage is a CP asset.
California is a community property state..…
- The character of a personal injury award is determined when*
- Upon divorce, CP will be*
- At death CP will be*
Gift も場合によって検討する！
All property acquired during marriage is presumed community property.
Separate property(SP)includes property owned before marriage, property acquired by gift, will or inheritance during marriage,rents , issues and profits from SP, and earnings after permanent Physical separation.
This presumption can be rebutted by tracing to a Sp source orby an agreement to the writing to the contrary(premarital agreement).
Upon divorce, CP will be devided equally
unless some special rule applies or the spouse agree otherwise in writing or orally in open court.
At death, in absence of a valid will, CP will be inhereited by the surviving spouse.
- # The character of a personal injury award is determined when the cause of action arose,*
- # There is no transmutation affecting this join account.*
the way to examine 1 2 3
The fact that such wages are deposited into an account in the sole name of just one spouse /….
Source ⇒transmutation ⇒division by divorce(death)
- In 2007,while married to H,W inherited $150000 W used the 150000 inheritance to purchase the stock. Thus the source of the stock was W’s inheritance which is W’s Sp*
- # Here the mirror was purchased during their marriage with their earnings. Since all earnings during marriage are CP and the building was purchased with CP it does not matter that W had taken title of the building in her name alone/*
- # (Because @was held in joint title, there is a presumption that W intended it as a gift to the community)*
This presumption can be rebutted by tracing to a Sp source or by an agreement to the writing to the contrary.
# Here, W can trace the 50000 used for acquisition of the stock to her 15000 inheritance W’s inheritance. W’s inheritance is her SP Thus the general Cp presumption is rebutted by tracing the funds used to purchase the stock to a SP source, the inheritance.
The fact that such wages are deposited into an account in the sole name of just one spouse does not alter the character of the funds. ←入れる
Necklace acquired and give n to the wife during his marriage
Here, the necklace was acquired in 2011 while H and W were still married Thus the N is presumed to be the CP. However, H will be able to rebut the presumption by tracing back to the source of the fund used to purchase the necklace. Here when H gave W the Necklace no transmutation occurred because there was no express declaration in writing signed by H Exception Gift of personal nature
all property acquired in a non community propety state is considered…
all property acquired in a non community propety state is considered quasi community property if the couple now resides in California quasi community property are treated as SP during marriage and treated as community property at death or divorce
Parties may transmute property…
Exception
Parties may transmute property from SP to Cp, Cp to SP , one spouse Sp to SP.
Any transmutation must be in writing clearly state the change in character of the propety and be signed by the spouse whose interest is adversely** affected**. (exception used solelyby that spouse and it is not valueble)
the fact that .. is not sufficient evidence of a transmutation
One exception to the writing requirement is gifts of personal property given by one souse to another spouse that are not substantial in value and used in the home.
Holding property in the name of one spouse does not defeat the community presumption when the property was acquired during marriage.
There is an issue as to how
On dissolution W would … On dissolution, H would ..
There is an issue as to how @@should be distributed upon divorce.
H has right of all the stock.
And is liable to reimburse the community for all the funds which used to furnish. have equal right of the rental house. # A is entitled to one half of the property.
For CP to given to a third party there must be expressed consent from the other spouse
or CP to given to a third party there must be expressed consent from the other spouse A spouse may not convey her intrest in CP during the marriage unless done through devise. In this case, H can seek the court permission to set aside the sell of the building or settle for ½ the value of the proceeds during the dissolution process. If he is bona fide purchaser (buyer who paid value consideration without notice)
spouses owe each other …
spouses owe each other a fiduciary duty.
These duty include the duty to inform the spouse of the status of CP and the duty to obtain consent for major decisions .
If a spouse violates his or her fuduciary duty the other spouse,
as a remedy the other spouse may heve his or her name added to the title of the affected propety, the spouse may be entitled to a larger share of the community property.
Here, W may have breached her duty to obtain consent for major decisions.and she took title in her name alone. At divoece it wll be divided evenly between the two wpouses , with H receiving a larger share as the court deems just due to W’s breach of her fiduciary duties.
If there is value increase in SP business by SP funds(or CP ),
P or V accounting method applies on dissolution of the marriage.
*If the business in value because of the spouse’s contribution of effort , not because of market force, which accounting method is better?
Under the P ( ) is SP.
Under the V () is SP
SP business CP business は対象外
There are two different accounting methods to determine the value of the SP and CP interest.
While Pereira accounting method applies
where the value increase is because of the spouse’s personal effort,
van Camp accounting method applies where the value increase is because of the character of the business.
Here , solely through his own efforts, it propered and is now worth @@
Under Pereira, the SP business value at the time of beginning plus the fair rate(usually 10%) increase of the business is SP.
The rest is CP.
Under Van camp the community receives a multiply with average annual salary for labor for * years (CP),any communit expenses paid and the rest would have been SP.
Here, the restaurant in value because of H’s contribution of effort not because of market forces, the Pereilra is propbably the better formula.
The marital economic community begins
まりえこnomicc
Marital economic community begins at marriage and ends at death, divorce , or
when there is permanent physical separation and an intention not to resume the marriage. Intention not to resume the marriage by one spouse only is effective so long as it is communicated to the other spouse
- The fact that H moved out is conduct that supports an intent.Howeer if H moved out with intent to resume marital economy , the MEC would officially end in 2018.*
- Henry moving away permanently is indication of an intention not to resume the marriage, but we would need more facts about intent to make that determination.*
at resolution.,A party’s SP contribution to the improvement of CP will be
at resolution.,A party’s SP contribution to the improvement of CP will be entitled to reimbursement
A premarital agreement is an agreement between future spouses designating the presumption of Cp eliminated and that their properties and future property acquisitions will be considered Sp. To be valid
premarital agreement is an agreement between future spouses designating the presumption of Cp eliminated and that their properties and future property acquisitions will be considered Sp.
To be valid 7V sa in
1) PA must be voluntary
2) in writinig signed by the parties
3) at least 7 days to read and sign the agreement
4) not against public policy
5) given to independent counsel
Community responsibility for debts of one spouse..
mortigage is SD or CD?
thereis no CP debt Community debt
A loan during the marriage is community debt unless
the lender’s primary intent when giving the loan
was solely credit to the H
(ex he used his SP for collateral for the credit purpose)
The lender’s primary intent when giving the loan
determines the character of the loan
If the lender’s looks to SP as security , the moetgages is likely SP …
On divoece, W will be responsible for the mortgage unless justice requires otherwise
if the lender’s looks to CP as security , the moetgages is likely CP
If the cause of action occurs during marriage,
the judgment against one of the spouse is CP debt.
if the tortfeasor sopouse was acting for the benefit of the marriage not acting for the benefit of the marriage
How allocate at the divorce?
the creditor whoseek personal injury recovery may recover first from CP then the tortfeasor spous’s SP CP >> SP
if the tortfeasor spouse was not acting for the benefit of the marriage the creditor may recover first from the tortfeasor spouse’s Sp then the tortfeasor spouse’s CP SP>> CP
** CP is liable anyway !
@reimbursement
Where CP is used to pay an obligation arising out of spouse’s tort that was committed not during an activity for the benefit of the community, the community is entitled to reimbursement for that payment if the tortfeasor’s SP was available to pay
@division
Typically, a judge will allocate a tort debt to the tortfeasor spouse if the tort was incurred not during an activity for the benefit of the community. However, a judge may take into account ability to pay to effect a more just allocation of debts
Generally, a spouse may not unilaterally encumber community real property without a joint action on behalf of both spouses. Additionally, the spouse may not separately encumber her half interest in the property. The one exception to this rule is for the spouse to satisfy attorney fees in the divorce proceeding between the spouses
When the property is acquired in joint and equal form
there is a presumption that the property is CP
(
and
if any SP was used to purchase the propety is subject to the Lucas and anti Lucas stattute.
協同名義の購入に使われたものだけ
On death ,,, On divorce,,,
1) Here, the townhouse was solely in W’s name alone. Therefore, the presumption that arises from joint and equal form and the anti-Lucas (which applies on divorce) and the Lucas (which applies on death) need not be considered.
* 1)*However, this joint presumption does not apply to bank accounts. With bank accounts, a court will allow jointly titled bank accounts to be traced to determine the source of funds and how it should be characterized.
2) Here,he property is acquired in joint and equal form
On death, Lucas applies that without an express agreement to the contrary
The SP used to acquire title in the property in question will be deemed to have been made as a gift to the community.
On divorce, Anti-Lucas apply and without express agreement to the contrary or express wording in the deed,
SP used to acquire the property in joint and equal form is entitled to reimbursement for the _d_own payment, _i_mprovement and _p_rincipal payment of mortgages but not an ownership interest（DIP).
not reimburesed interest,tax,insurance and maintenance
Here,
property is not acquired in joint and equal form(so Lucas need not considered)
Where CP funds is used to pay an installment payment on SP,
Upon divorce,,,
the community has a pro rata ownereship share in the property
The community’s interest in the townhouse is as follows
the amount of community funds used to pay the mortgage devided by
the total purchase price.
Here, the townhouse is SP, and under the principal debt reduction method, the CP will receive a pro rata share as follows:
amount of CP funds expended on paying down the debt divided by the total amount of SP
and CP money used to pay off the debt X the increase in value.
Furthermore, the CP is entitled to the funds expended on paying down the debt from H’s account.
tytle
1 source
2 presumption
3 actions
1 source
- W uses the ;;; to purchase ;;;*
- Thus the source of ;;;was W’s inheritance, which is W’s SP.*
2 presumption
- All prperty acquired during marriage is presumed CP .*
- This presumption can be rebutted by tracing to a SP source or by agreement to the writing to the contrary, Here ,W can trace the ::used for qcquisition of :: to her ::which is W’s SP.*
- Thus the general CP presumption is rebutted by tracing the source.*
3 The only action taken by the parties with respect to the :: was to pedge it as collateral for the loan to build the rental property, which is not sufficient evidence of a transmutation because ..
conclusion
Therefore (the property )will be …
(the property ) will be awarded solely to W as her SP.
Improvement of SP with CP
Here, CP was used to improve SP,
Where CP is used to improve a SP asset , the community is
Where CP is used to improve a SP asset ,
the community is entitled to reimbursement for
the vaue of the contributions for down payment,
improvements, and payment of principal ,
plus a pro rata share of the appreciation calculated by dividing the CP contribution by the total contribution of SP and CP.
The fact donot give enough details to make such a caluculation..
but it will be some portion of the present market value.
the debt incurred after end of marital the economic community , it will be…
However,,,
Upon divorce,,,
the debt incurred after end of the economic community , it will be separate debt.
However,even after separation, both spouse may be personally liable for payments for the necessities of life of the other spouse incurred before divorce..
The court may be
At divorce community assets are genrally divided under the equal division rule.
However, a judge has more discretion as to the allocation of debts at divorce.
\ex the family home when selling it will uproot the children and cause them harm
