Marital Property Flashcards

Question

disability benefits and employee contract

Answer 1

1. To determine character of disability, ask what is the disability pay replacing? a. If disability pay is intended to replace marital earnings, it is CP b. To the extent it is intended to replace post-divorce earnings, it is S 2. If employee spouse is eligible for retirement benefits but chooses disability pay instead, the disability pay is treated as CP to the extent it replaced a CP interest in retirement benefits employee spouse could have taken. a. Marriage of Stenquist: H injured and could take retirement from the army at 65% of his current salary or disability at 75%. H chose disability. 10% difference = SP; the remainder = CP (subject to the time rule 3. If disability pay extends beyond normal retirement age, it is CP to the extent that it was earned during marriage or purchased with CP funds

Answer 2

n/a in CA 1. Under this doctrine, non-employee spouse CP interest in the employee spouse’s retirement benefits ends with the non-employee spouse’s death (i.e., it “goes back into the pot” of the surviving employee spouse’s retirement plan) BUT THIS IS NOT THE CASE IN CA ANYMORE! 2. CA abolished in 1986 a. If B dies before A, B’s estate includes B’s ½ share of CP of A’s pension b. Divorced non-employee spouse may will away her CP interest c. Divorced non-employee spouse may assert her CP interest in any benefit generated by community labor d. Even when the marriage persists until death, the estate of the deceased employee spouse may not will away the non-employee spouse’s CP share

Answer 3

ERISA: individuals covered by ERISA-governed retirement plans cannot assign or transfer their retirement benefits to someone else. The purpose of this restriction is to safeguard the intended beneficiaries' rights and ensure that retirement benefits are used for their intended purpose—providing financial security during retirement fundamental protections provided by ERISA REA a. Federal law enacted by Congress to address issues related to retirement benefits, particularly in the context of divorce i. Act aimed to ensure fair treatment of spouses, particularly non-working or lower-earning spouses, in the division of retirement assets ii. It allows divorce-related state law property and support distribution to an alternate payee pursuant to a qualified domestic relations order (QDRO) 3. An alternate payee may be a spouse, former spouse, child, or other dependent of the pension holder. The Retirement Equity Act provides that the ERISA restrictions do not apply to a QDRO

Answer 4

the character of property can be changed, both parties have to agree. this is changing the character, not necessarily the property can happen in 2 ways a. Pre-marital/Ante-Nuptial Agreements: Couple can agree to opt out of the CP system and agree to preserve as separate property their earnings during marriage and not to make any CP claims against the other’s estate at time of death b. Agreements made during marriage: “transmutation” because the property originally has one character and is transmuted by agreement to take on another character

Answer 5

Before 1985, transmutations could be informal, no writing requirement EXCEPTION: JT (since half of JT can't be willed away) right of survivorship. so writing always required for transmutation of CP/SP to JT however, before 1985 just saying "our house" not enough transmutation may be proved “by the acts of the parties and their conduct in dealing with the property.” No express or formal agreement is required if it may be fairly inferred from evidence CP intended. H owned SP and W managed it. Filed income from hotel jointly (only CP could be on joint return at time). Property transmuted to CP Note: for purposes of death, is H putting title in W’s name alone for a house sufficient to transmute Cp to W’s SP? Title could be deemed evidence of an agreement to transmute to W’s SP

Answer 6

must be in writing! by an express written declaration can be with or without consideration, only between spouses, subject to law of fraudulent trannsfer no exceptions to this! Need something more concrete like “I, wife, waive my right to any CP that may be contained in the IRA” or “I, wife, agree that any CP contained in the IRA be changed to husband’s SP” Not effective as to 3rd party without notice unless recorded The transmutation must be recorded, can’t portray it as SP to a 3rd party unless it’s recorded not applicable to gifts of clothes, jewlery, tangibles a. Using CP to buy gift for spouse becomes spouse’s SP, no need for declaration since it’s a gift (unless value of gift is grossly out of proportion to your standard of living, then need a writing to transmute CP to SP) b. “Tangibles” ≠ car (Marriage of Buie where H bought a Porsche in his own name with W’s SP and called it a gift…not valid transmutation to HSP. Still CP unless written agreement) Date of transmutation is important, not date of acquisition

Answer 7

not satisfied unless writing contains language which expressly states change in characterization or ownership being made transmutation not enough intent and extrinsic evidence not considered Just putting the title in one spouse’s name does not satisfy the express declaration requirement... Unless the language includes “as W’s separate property” when H waiving his right trust had language “any SP transferred into trust is CP unless identified as SP.” But this language wasn’t explicit enough to transmute SP to CP, didn’t say SP would become or be changed into CP H bought life insurance policy and paid in full upfront (100% CP), named W as the “owner” of the policy. At divorce, wasn’t enough to satisfy express declaration i. Rule: if H & W acquire property with CP and agree that it is to be W’s SP, they must put the asset in W’s name and add language like “as her separate property” or “sole and separate property”

Answer 8

H & W acquired property with CP funds and took title as joint tenants. H filed for bankruptcy, argument that since they were JTs the property was SP for each, so creditors couldn’t reach to W’s property. i. Rule: taking title as JT on property using community funds after 1/1/85 is not sufficient by itself to transmute CP into SP 1. Between 1/1/1975 – 12/31/1984: insufficient by itself, but a court may consider oral agreements/understandings between spouses 2. Before 1/1/1975: JT property acquired with community funds before 1/1/75 is presumptively SP

Answer 9

Since a will only becomes effective at death, a statement in a will that attempts to change the character of the property is not admissible as an express declaration before death of the testator Hypo: H owns stock as SP but describes them as CP in his will. Not a valid express declaration for transmutation No conditional/temporary transmutation: can’t say transmute on death only and not on divorce. Once it’s transmuted, can’t reverse unless new express agreement

Answer 10

* Presumption is not evidence; once there is certain evidence, it triggers a presumption, and the burden shifts to the other party o Conclusive presumption: court MUST find presumption despite contrary evidence o Rebuttable presumption: court may hold only until sufficient contrary evidence * Standard of proof to rebut: preponderance of evidence o Burden of proof is on whoever wants to show something is CP

Answer 11

1. Property acquired during marriage = CP a. Burden of proof on party who says, “property is CP because acquired during marriage” i. Party must show property was acquired during marriage to trigger presumption b. Once A proves it is CP and triggers general presumption, burden shifts to B If B wants to rebut, must show that property was: i. Acquired from SP source, or 1. Lucrative title (gift, inheritance, bequest) ii. Acquired with B’s SP funds 1. Could also show asset was transmuted from CP to SP by agreement 2. Property acquired with CP funds = CP a. Burden of proof on party who claims property is CP because acquired with CP funds b. Once A proves it is CP, B can rebut by presenting evidence that parties agreed to hold the property as other than CP i. Ex: A makes a gift of CP to B as B’s SP

Answer 12

1. Title presumptions apply when title is understood to show an agreement of the parties (spouses) to hold as indicated in the title a. Title presumptions are stronger than general presumptions. Even though tracing works for general presumptions, not enough for title. Need to show agreement between parties 2. Title in 1 spouse’s name treated differently than title in both names: a. Both names: presumption is CP i. Title in one spouse’s name does NOT defeat the general presumption that property acquired during marriage is CP b. 1 name: i. A’s SP and has only A’s signature (“immaterial”)  title irrelevant (because no evidence of agreement), CP unless there is evidence of an agreement to transmute 1. Ex: A buys car with CP and has title state “A’s SP” = asset is still CP ii. A’s SP and has B’s signature (“controlling”)  title presumption is A’s SP 1. Ex: B buys a car as a gift for A with CP and signs title as “A’s sole and separate property”

Answer 13

To get a Community Property title presumption, governing instrument must either specify that the property is held as CP or that the co-owners are husband and wife a. Rebuttal: with valid agreement that spouses agreed to hold the property as other than CP i. Can’t rebut just by tracing to non-CP source of funds ii. Compared to non-titled property, that CAN be rebutted by tracing

Answer 14

applies to titles taken before 1975! 1. Before 1975, only the husband could determine the title of any asset purchased with CP funds. & H had sole control & management of CP a. Pre-1975 acquisition held by a married woman in her name alone is presumptively her SP, whereas a pre-1975 acquisition held by a married man in his name alone is presumptively CP 2. Presumption: wife took any asset by written instrument on which her name appeared alone or with another person as her SP a. If only W’s name  W’s SP b. If W’s name + another person  W takes her part as Tenant in Common/Joint Tenant (SP) c. If acquired by H + W and says H & W  CP (unless different intention expressed in the instrument) EXCEPTION: 1. Title reads: “John Doe & Jane Smith Doe, husband & wife, as TinC” 2. Title presumption: ½ is CP, and ½ is W’s SP 3. H & W have equal shares in the CP ½ 4. Therefore, H owns ¼ as his CP share, and W owns ¼ as her CP share plus ½ as SP 5. Rule applies: only if title says as TinC before 1975

Answer 15

Dont have to be still married

Answer 16

If you got JT, includes right to survivorship, if you changed title from JT to CP, lose right to survivorship Wanted it in writing to make sure knew it was intending to do it, giving away a big right

Answer 17

Presumption JT = JT JT was regarded as SP, with right of survivorship Problem was that divorce court only had JX over CP Court has jx over, only if it were CP, JT = cp for divorce only, then expanded to be all JTs even if not single family dwelling, then changed all JTs, tinC, all CP for purposes of divorce If dies, true JT

Answer 18

The transmutation must be recorded, can’t portray it as SP to a 3rd party unless it’s recorded If youre a 3rdp, like a creditor, thinks a piece of property that has been identifies as collateral, you think it is CP, so if in order to evade creditor the couple attempt to transmute to one’s sp, have to notify 3p so he knows it is not CP, and if try to do it after the fact, still have to let him know, used as collateral Try to collect on debt, not CP, SP, court will say not effective, need to notify, bc did not tell him was gonna try

Answer 19

In order to be true title presumption, have to be in agreement by spouses, if one person buys asset with CP, and puts their name on it without agreement of other spouse, no benefit of title presumption Ex. getting divorce, look its in my name as my sole and SP, court will say no, no agreement there, did it unilaterally. Once theres agreement, created true title presumption

Answer 20

At divorce, presumption of CP, each get half At death, presumption that surviving spouse gets 100%

Answer 21

Does now, didnt used to

Answer 22

Can only be prospectively If SP put into CP asset before 1984, cannot retroactively have right to reimbursement Can rebut gift by showing agreement, valid at time made, written oral express implied, could say person who put in SP gets proportionate share as SP, or is entitled to reimbursement with interest, or entitled to reimbursement without interest, whatever agreement made before 1984, valid at time made, can enforce So before Lucas, if SP made a contribution, it was a presumption of a gift, with no right to reimbursement. And the presumption could be rebutted by any type of agreement. After Lucas, there is an automatic right to reimbursement of SP without interest

Answer 23

If valid agreement before 1984, said JT was SP, cannot be required to come up with a writing to rebut new presumption, allowed at time of divorce able to prove what agreemenet u had at time that was valid at time of divorce Can reput JT = CP for purposes of divorce only, valid at time made, Applying 4800.1, retroactively find, CP or impair vested right

Answer 24

Commingled bank account, dont apply 4800.2 to that, dont get it back. An answer that said 4800.2 applies, just wrong

Answer 25

a. If only W’s name = W’s SP b. If W’s name + another person = W takes her part as Tenant in Common/Joint Tenant (SP) c. If acquired by H + W and says H & W = CP (unless different intention expressed in the instrument)

Answer 26

half is wife's SP, half is CP if its with a husband

Answer 27

JT for purposes of death, before 1965, only single family residences was JT=CP for divorce. now, any JT = CP for purposes of divorce

Answer 28

Louknisky v. Louknitsky (1954): wife used CP funds to buy a house in SP title only. But husband had no idea that she took property in her name alone. Married women’s presumption was rebutted here

Answer 29

half wife's SP, half CP

Answer 30

wife takes her part as TinC -- half SP

Answer 31

The JT is treated as a TinC Wife’s ½ share is SP

Answer 32

½ CP ½ Jane’s SP

Answer 33

JT (for purposes of death)

Answer 34

iii. “J & A, as joint tenants” = at death right of surviroship at divorce, effective 1984, treat JT as CP

Answer 35

JT = JT a. During marriage: each spouse has ½ SP interest i. Each spouse can sever their JT, thereby turning into TinC b. At death: whole property passes to survivor i. If JT title was never severed through marriage, dying spouse can’t will away ½ interest – bc right of survivorship

Answer 36

property acquired during this time in JT = CP for divorce * Can be rebutted only with clear statement in the deed or written agreement stating property not CP o If the transaction took place before 1/1/84, can still use W, O, E, I agreement o If transaction took place after 1/1/84, can only rebut with written agreement

Answer 37

4800.2 — But, as of 1984, there is a right to reimbursement of contributions to the acquisition of the property to the extent that party traces the contributions to sep property source. Right reimbursed is WITHOUT interest, so apprecations CP, split evenly No right to reimbursement before 1984 without an agreement

Answer 38

Oral agreement prior to 1984 — 4800.1, cannot retroactively require written agreement for transmutation if it would substantially impair a vested property right

Answer 39

pre 1975, maritall presumption pre 1975, men control property

Answer 40

before 1984, rebutting jt = cp at divorce, W,O,I,E after 1984, rebutting jt = cp at divorce, written (4800.2) (never applied retroactively) before 1984, SP contribution to CP, no automatic right to reimbursement (presumption of a gift). could be rebutted by WOEI, with or without interest, depending on agreement after 1984, SP contribution to CP, automatic right to reimbursement without interest, waived only in writing

Answer 41

transmutations for everything except JT pre 1985, no writing post 1985, writing req only professional degrees pre 1985, NA post 1985, community right to reimbursement

Answer 42

PMA ss waivers pre 1986, per se invalid post 1986, not per se invalid

Answer 43

rebutting JT titles = CP at divorce pre 1987, rebutting WOEI post 1987, in writing after 1987, all property in any joint form = CP for divorce can only be rebutted in writing

Answer 44

SP contribution to improvement of another's SP pre 2005, presumption of gift post 2005, right to reimbursement without interesy unless written waiver or transmutation agreement

Answer 45

single family residence, taken by H and W as JT. JT = CP for purposes of divorce. rebutted by WOEI JT = CP only applied to single family residence

Answer 46

all property H and W in JT = CP for divorce, not just single family residence rebuttal for JT has to be inw riting

Answer 47

If spouse A makes SP contribution purchase CP house 1, house 1 refinanced and an equity loan used to purchase CP house 2, or house 1 sold and proceeds used to pruchase CP house 2, at divorce on or after 94, A entitled to reimbursemed for SP contribution

Answer 48

1. CP Payments on mortgage for SP asset a. A acquires SP asset before marriage with title as A’s SP b. During marriage, CP used to make payments; A’s SP asset increased in value i. Courts apportion character of asset according to relative contributions of SP and CP ii. Character not determined by character of initial contributions c. At divorce: community has right to proportionate share of property

Answer 49

a. CP used to pay pre-marriage SP titled property b. Untitled asset acquired during marriage with SP and CP funds c. SP titled asset acquired during marriage with SP and CP d. Jointly titled property w/ proof of spouses’ agreement to preserve proportional interests No right to apportionment or to reimbursement for CP payment of interest/property taxes

Answer 50

A bought house before getting married titled in his name, 10k down + (50k loan + interest) o Got married right after and used CP to pay towards 50k loan + interest o Apportionment at divorce: 10k = 1/6 = H’s SP; 50k = 5/6 = CP o Value of house 300k at divorce  50k goes to H off the top (1/6)  Remaining 250k is CP (1/2 for each spouse) o Note: no reimbursement (A doesn’t just get 10k SP payment back) because the property is his SP—title is in his name & original character of property is his SP no reimbursement, just gets the 50k off the top since 1/6 of 300 is 50

Answer 51

o SP titled asset acquired during marriage with SP and CP; A takes title in his own name o A buys $1000 asset with $200 SP and $800 CP o Character of property = 20% A’s SP, 80% CP o Character of property comes from character of funds

Answer 52

o Asset acquired with 10% A’s SP, 15% B’s SP, and 75% CP o Character is apportioned accordingly (since untitled; ex: bike, painting, dog)

Answer 53

After getting married, change title from A --> A and B as JT o Character of property at divorce: JT = CP for purposes of divorce o Right of reimbursement of A’s SP (original 10k)  A gets 10k SP  Remaining 290k is CP (1/2 for each spouse)

Answer 54

o Character of property at divorce is still CP, but no right of reimbursement (gift to community unless agreement otherwise) o A doesn’t get 10k back

Answer 55

o No right of apportionment o Community has right to reimbursement of amount spent (NOT increase in value of SP asset)  Doesn’t matter whether B agreed to use CP funds to improve. There is no presumption of gift from the community  A and B each get ½ of amount spent  But A and B can agree to waive CP right of reimbursement

Answer 56

traced through refinancing or sale and future purchase o If A used SP for down payment of CP house, then CP house sold to buy another house, A still entitled to reimbursement of initial SP at divorce

Answer 57

o A has right of reimbursement without interest, unless written waiver of right to reimbursement or agreement of transmutation o Before 1/1/2005: presumption of gift

Answer 58

o A uses SP to buy house for A and B taking title in JT o Character of house = CP, not B’s SP o Title presumption applies and cannot be rebutted by tracing to SP funds  A by taking joint title as JT (H & W) = transmutation to CP  Title = express declaration of him changing SP funds character to CP  B likely agrees with the title, agreement gives title presumption controlling power

Answer 59

1. Issues arising when the character of an asset is in dispute: acquired during marriage with funds from commingled account a. General presumptions apply: i. Acquired during marriage = CP ii. Burden of proof lies with party seeking to rebut presumption iii. Rebut general presumption by tracing to SP source commingling presumption: if funds from commingled account were used to acquire disputed asset a. Rebuttable presumption that funds used were CP  asset was CP b. Burden of proof lies with party seeking to rebut presumption that CP funds were used c. Rebut to show SP funds were actually used by showing: i. Only SP funds were available [CP funds exhausted], or ii. SP funds and CP funds were available but purchaser intended to use SP [contemporaneous records]

Marital Property Flashcards

(88 cards)