Community Property Essay Flashcards
Classification of CP
Personal Injury
Is SP
Classification of CP
Retirement Benefits
Are CP if earned during the course of the marriage.
Nevada: Wait and See Approach
Classification of CP
Disability Pay and worker’s compensation benefit
Are treated like CP to the extent they replace wages.
Classification of CP
Business and Professional Goodwill
Is CP if earned during marriage.
Classification of CP
Education and Training
Are not Community Property
- A spouse who supported the other spouse in obtaining a degree may be entitled to a maintenance ward as a result of the contribution to the education.
Classification of CP
Life Insurance
Is CP to extent CP is paid the premiums.
- If the surviving spouse is not named beneficiary, 1/2 CP share goes to the beneficiary.
Pro Rata Model Answer without Math:
The property is part of SP and part CP, in porporation to the payments made with separate and community funds.
While Nevada generally follows CA approach by dividing the appreciation in property value from date of purchase to date of divorce pursuant to formula that takes into account # of monthly payments made with separate funds and # of monthly payments made with Community funds.
Essay
Pereira
His initial investment + a reasonable rate of return on the property brought into the marriage.
The remaining value of the business is CP to be divided.
Essay
Van Camp
The CP interest is the reasonable value of the spouse’s services, less family living expense.
Community Property Introduction
- Nevada Is a community property State.
- All property acquired during the marriage is presumed to be Community property
- Separate Property (SP) is property acquired before or after marriage, and that was acquired by gift, devisee, or descent.
- if an item is SP, a mere change in form will not change character unless: It is transmuted or gifted to the community.
- Burden of proving that an item is SP is on the spouse claim that property is SP, and it must be proved by clear and convincing evidence.
Transmutation
Deed Conveyance by Spouse
Occurs if the spouses agree to change the character of the assets.
Transmutation Agreement:
1) Must be in writing
2) Signed,
3) acknowledgement by a notary
A spouse to spouse conveyance by deed creates a presumption of gift that can only be overcome by clear and convincing evidence.
Essay
Debt By 1 Spouse
Debt incurred by one spouse during marriage are CP and presumed to be for the benefit of the community.
* in addition to binding CP, the debt can be satisfied by the SP of the spouse who incurred debt.
Control CP:
* each spouse has equal rights to control and dispose of CP, except both spouses must sign when buying, selling, or encumbering real property of if managing a CP business, both must sign to buy, sell or encumber business assets.
- If only one spouse participates in Management, he may in the ordinary course of business purchase and encumber the assets without his spouse consent.
Management and Control During Marriage
Basic Rule
The general rule is that during the marriage the spouses have equal management and control of all the community assets. Gifts of a CP assets require the written consent of non-donor spouse.
Community Property
Social Security Benefits
Under Federal law, SSB are the SP of the recipient spouse.
- Under federal law preempt inconsistent law.
- SSB not subject to division in divore
Child Support and Alimony Jurisdiction
A court only has power to grant alimony and child support if it also has personal jurisdiction over both spouses.
- PJ is valid over any person served in the state so long as service is not made through fraud or force.
