What happens to CP not divided on divorce? If property is commingled during the marriage, the presumption is that the property is community property. Management & Control of Community Property (State the Rule). CP or SP: Disability & Worker's Compensation (State the Rule). Breach of Fiduciary Duty Remedies (Section 1101).
Rule: Community Property can only be accumulated during the existence of the economic community. the tort recovery is CP. If original state was not a CP state, then non acquiring spouse loses interest in property. Family Code Section 721 established that 1) spouses have a fiduciary relationship to each other, and 2) rules governing non marital fiduciary relationships also apply in the marital context. Rule: A non-debtor spouse can avoid having her wage earnings attached in satisfaction of debts incurred before marriage by the debtor spouse by depositing her earnings into a separate bank account in which the debtor spouse has no right of withdrawal.
The community acquires an interest in a spouse's business and professional goodwill.
udner federal law, can get a qualified domestic relations order and receive payments from the plan. the tort recovery is SP because we dont want spouse to benefit from wrongful act. What presumptions arise when take title in joint and equal form? If option is awarded during marriage but does not best until after the economic community has ended, the proration formula that is used in determining what interest is CP and SP depends on primary intent of employer in granting option. A party may file a post judgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. Rule: Neither spouse may make a gift of CP without the other spouse's written consent. Where people live together and hold themselves out as married, CA does not recognize common law marriage and does not recognize CP for them. Management & Control of CP: Borrowing against real property (State the Rule). Rule: To validly waive rights through a prenuptial marital agreement: Unenforceable Prenuptial Agreements (State the Rule). If your broker fixes prices with another broker, the broker may: when planning for an investment that will extend over several years, the ability to predict how the results of the investment will be taxed is important. Non-working spouse rides the risk of decrease or loss as well as increase.
She originally paid $750,000 for the property four years ago. Rule: Prenuptial agreement will be held unenforceable in the case of: Definition: Transmutations are agreements made during marriage that affect the status of property. The community is liable for the debts accrued by a spouse during marriage. Rule: Transmutations made on or after 1/1/85 must be: Step 3- Special Circumstances: Assets that are governed by special rules to determine whether they are CP or SP (List Them), CP or SP: Personal Injury Settlements (State the Rule). Fact that SP comingled with CP does not transform or transmute SP into CP. All property acquired by either spouse while domiciled outside California which would have been community property if the spouse who acquired the property had been domiciled in California at the time of its acquisition. Commingling occurs when the property contains a blend of both community property and separate property. MUST BE TITLE DOCUMENT OR DEED INVOLVED. Court retains continuing jurisdiction to award CP that was not previously adjudicated and on motion the omitted or unadjudicated CP will be divided 50-50 unless the court finds that "the interests of justice require an unequal division. Money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage. Rule: Household personal property of a spouse or minor children may not be sold without the written consent of the other spouse. Distribution of Property: What happens when community liabilities exceed assets at divorce? 
Community's right to reimbursement may be reduced or modified where 1) the community has already substantially benefitted from the edcuation or training, 2) the education or training is offset by community funded education received by the other spouse, or 3) the education or training enables its recipient to engage in gainful employment that substantially reduces the need the recipient would otherwise have for spousal support. non-marital cohabitation arrangements do not fall under the Family Law Act but instead will be governed by contract principles. Rule: The Consequences of a spouse's mismanagement of CP depend upon the timing of the occurrence: Management & Control of CP: What remedies are available for mismanagement of CP by a managing spouse? If other state was a CP state, then non acquiring spouse is treated as true CP not quasi CP. Rule: Any property that would have been CP if the marriage were valid is Quasi Marital Property, Unmarried Cohabitants (Define and State the Rule), Definition: Two people who live together in a marriage like relation, often as partners in life and with the suggestion of sexual relations, but who are not married, domestic partners, or putative spouses. Indirect tracing relies on circumstantial evidence to support the assertion that there was insufficient CP funds to effect the purchase and there was sufficient SP funds to make the purchase. Quasi-Community Property language for Essay. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: CP funds used to pay off purchase price on SP - Moore/Marsden. Can 1 spouse transfer or encumber her 1/2 interest in real CP?
The community has an equitable right of reimbursement with interest if community funds are used to repay a loan incurred for education or training and the education substantially enhances the earning capacity of the educated party. What roles does Federal Preemption play in Community Property? The source of an asset (or the source of the funds used to purchase the asset), together with the actions of the parties, may alter the classification of an asset. After divorce, each spouse is liable for every debt s/he incurred irrespective of whether the court assigns the liability to the other spouse.
In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability. No. the most common examples are i) salary or wages earned by either spouse, and ii) income from community assets. Source of Funds: How can funds be traced? If a spouse with SP using community funds to improve their own SP, who owns the house at divorce? Taking property in joint and equal form: When should you apply anti-Lucas? Rule: The non-managing spouse may sue for damages if the managing spouse's breach of fiduciary duty resulted in a substantial impartment of the non managing spouse's interest. The courts will enforce express contract and employ the doctrine of quantum meruit where needed. The burden of overcoming the presumption of community property lies with the party asserting a separate property interest. what happens at divorce? The community is entitle to reimbursement for education expenses if the education "substantially enhances the earning capacity" of the spouse. How can you rebut the statutory definitions of CP and SP? A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.
The debtor-spouse's separate property also is liable for those debts accrued.
Determined by the intent of the employer: If the options are given as incentive for work in the future or for past work performed. 1. Defenses to Enforcement of a Premarital Agreement. Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate. The term "exhaustion of administrative remedies" means that: What signals the beginning of proliferative phase. -property owned by either spouse before marriage, Community Property (statutory definition), property other than separate property, acquired by either spouse during marriage. Rule: The following remain the Sp of the spouse who earned or purchased them: Management & Control: What duties do spouses owe one another? Rule: The sale of community realty by one spouse without the written consent of the other spouse may be voided. Price fixing between brokers is a violation of the federal anti-trust laws.
Definition: A tort debt is a financial debt or obligation that arises out of an action in tort.
the first, and historically the most challenging step in a metes and bounds description os. Property purchased on credit during marriage? Taking property in joint & equal form: What two rules should you consider when SP & CP funds contribute to a purchase? Only entire interest can be transferred or encumbered. Funds bororwed during marriage and goods purchased during marriage are presumptively community credit. Rule: If community liabilities exceed the community's assets at the time of divorce, the court will consider each spouse's ability to pay when allocating community liabilities. Goodwill are those qualities that generate income beyond that derived from the professional's labor and reasonable return on capital and physical assets. A putative spouse believed in good faith that s/he is legally married when, in fact, s/he is not legally married. Rule: Retirement pensions are CP to the extent pension benefits were earned during marriage. What assets are treated as separate property under federal law? In this type of business, the working spouse typically draws a reasonable salary form the business during the marriage. How are contractual debts/obligations satisfied? However, borrowed funds are classified according to the primary intent of the lender. A non-employee spouse who owns a community property interest in an employee spouse's retirement benefits under a defined benefit retirement plan owns a community property interest in the retirement benefits as enhanced. (State the Rule), Rule: Tracing can be accomplished by either the Direct Method or the Exhaustion Method, Source of Funds: Use of community and separate funds to purchase an untitled asset (state the rule), Rule: When a spouse uses both community and separate funds to purchase an untitled asset, a presumption arises that the asset is CP, Source of Funds: Down payment with separate funds & payment with community funds (State the Rule), Rule: If SP is used to make a down payment on an asset, and CP is used to make payments during marriage, the community estate takes a pro rata share of the property, determined by the reduction in debt principal from CP payments, Source of Funds: Mortgage of inherited/gifted property paid with community funds (state the rule). Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Even if economic community has ended, spouse still liable for medical bills until divorced. Rule: The timing of acquisition determines the presumptive classification of the property: How do you determine the classification of each asset? Rule: The taking of title in joint and equal for is inconsistent with an intent to preserve a separate property interest.
Quasi-Marital property is property that would ave been classified as community property if the marital union had not been void or voidable.
House is still SP. Rule: Whether recovery from an injury is classified as CP or SP depends upon the time of the injury: CP or SP: Property Insurance Proceeds (State the Rule).
This is prohibited by statute. Joint and equal form means the title lists both spouses names. If the liability of the married person is based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person. Necessaries are different from "common necessaries," which are the basic necessities, such as food, clothing, and shelter. Intent must be communicated. Property Acquired Outside Marital Relation. Debts incurred to buy necessaries of life (State the Rule). Management & Control of CP: Business run by one spouse (State the Rule). Rule: Absent a settlement agreement, all CP (both assets and liabilities) will generally be split evenly between the spouses upon divorce, unless special circumstances warrant that particular assets/liabilities be wholly awarded to a single spouse. Definition: An agreement made b a couple before marriage to determine property division (and often spousal support) in the case of divorce or death. Rule: Education and training generally are the SP of the educated/trained spouse. Each spouse has equal management and control over all community property and thus has full power to buy or sell CP and contract debts without the other spouse's consent or joinder. A premarital agreement is not enforceable if the party against whom enforcement is sought proves either : Any provisions regarding spousal support, including, but not limited to a waiver of it, is not enforceable if the party against whom enforcement is sought was not represented by independent counsel at the time of signing or if the provision regarding spouse support is unconscionable at the time of enforcement. 1 YR SOL.
and talk about economic circumstances exception. Rule: Each spouse has the right to dispose of his or her one-half interest in the community estate through testament. Rule: Transmutations made before 1/1/85 are valid if made in any of three ways: Transmutations: Made on or after 1/1/85 (State the Rule). Where a party had an objectively reasonable and good faith belief that they were lawfully married, the assets acquired by the couple are quasi-marital property and when they split, the assets are split 50/50. gift presumption.
Rule: A non-debtor spouse is personally liable for debts incurred during marriage for necessaries of life by the other spouse. 1) Not signed voluntarily. Exception to SP not being liable for other spouse's debt. Distribution of Property: Distribution of Liabilities at Divorce (State the Rule). Marital partners are deemed legally separated when they being living separate and apart and when one spouse intend to sever the marital relationship permanently. Management & Control of CP: Testamentary Gifts of Community Property (State the Rule).
Definition: A contractual debt is a financial debt or obligation created by contract. What 4 steps must you walk through when approaching a Community Property Question, Step 1: Identify Status & Length of Relationship, Step 1 - Status & Length of Relationship: List the 5 Types of Interpersonal Relationships Relevant to Community Property Questions, Definition: In California, marriage is defined as the legal union of a man and a woman. Necessaries are the living expenses and needs of the parties in order to sustain their standard of living. JOinder of both spouses is required. Quasi-marital property comes into play when a court determines that a marriage is void or voidable, and either party or both parties believe food faith that the marriage was valid. Real property doctrine of fixtures. The threshold issue whether CA community proper laws apply because H and W were married and domiciled in State X, a separate property state.Property acquired while the parties were living in separate property state is considered quasi-community property and is treated as community property upon death or dissolution. There are areas of specific property, such as property acquired by either spouse before marriage, acquired during marriage by gift, will or inheritance, and property acquired during marriage with the expenditure of separate funds. A premarital agreement shall be deemed not voluntary (and thus unenforceable) unless court finds that party challenging agreement: General Rule Governing Marital Agreements to change character of assets (Transmutation), Before 1985: Oral transmutations were permitted, whether by express agreement or agreement in fact. The Moore/Marsden rule reimbursed the community for its pro-rata share of contribution made to principal and for appreciation of the asset. (Enforcement of a premarital unconscionable when executed.).
When a tech receives a rejected claim "invalid birth date", this probably means: The Internal Revenue Code also is known as Title 26 of the Federal Code. Burden of proof is on person comingling to show that each asset was purchased with SP funds. The rule is that CP is subject to tort liability of either spouse. Where CP was used to take written title in a married woman's name before 1975 and the title did not indicate CP or joint tenancy was intended, the property is presumptively wife's SP. Rule: When community realty is sold, borrowed upon, transferred to leased for more than one year, both spouses must consent to the transaction in writing.
Living expenses are not. Definition: An agreement between spouses concerning the division and ownership of marital property made before or during marriage. The community and the debtor-spouse's separate property are liable for those debts. Anti lucas rule applies. Rule: The classification of disability and worker's compensation depends upon the earnings the compensation is intended to replace: Rule: The classification of severance pay depends upon the earnings the compensation is intended to replace: Rule: Stock options awarded during the economic community as compensation for a spouse's personal efforts are CP, CP or SP: Professional Goodwill (State the Rule). Intent of the Lender Rule: If the intent of the lender is to look at solely a separate property source, then that will rebut the presumption of community property. A spouse can trace his/her separate property interest in CP by way of two methods, direct or indirect (exhaustion) tracing. A premarital agreement is a contractual agreement between parties entering into a marriage regarding the classification of property assets. When asset is held in joint and equal form and SP is expended to improve CP, upon divorce, the party who expended SP would get reimbursement without interest for DIP.
Management & Control of CP: Mismanagement of Community Property by a Managing Spouse (State the Rule). Taking property in joint & equal form: When should you apply Lucas? For purposes of division of property on divorce or separation, property acquired during marriage in joint and equal form is presumptively CP, and is subject to equal division on divorce.
Transmutations: Made before 1/1/85 (State the Rule). Definition: Community Property is property earned or acquired during marriage to which each spouse is entitled one-half interest. When CP is used to reduce the principle balance of a mortgage of ones souse's separate property, the community acquires a interest in the property. (**. Rule: California courts retain jurisdiction to divide the community estate during divorce proceedings and apply the Equal Division Rule. Section 770 has been construed to allow tracing to the source of acquisition in order to demonstrate that the asset in question, although acquired during marriage, is wholly or partially separate property because it was acquired with (i) premarital separate property or (ii) the income from such separate property or (iii) property acquired by one spouse by gift, bequest, devise, or descent. Child or Spousal Support Obligation of a Spouse prior to marriage. For all purchases of property taken in joint and equal form before 1/1/84 (Do not use Anti-Lucas), Taking property in joint and equal form: Married Woman's Special Presumption (state the rule), Rule: Property purchased prior to 1975, with CP funds and title taken in a form other than community property or joint tenancy, is presumptively the SP of the married woman, Actions of Parties: Marital Agreements (Define and State the Rule).
Rule: A spouse may not be held personally liable for the tortuous conduct of the other spouse solely on the basis of her status as a spouse.
Management & Control of CP: Real Property (State the Rule). She spent $300,000 on capital improvements during her ownership. Disability and Worker's Compensation Benefits.
Pro-Rata Rule: Community Estate takes a pro rata portion of the property, measured by the amount of principal debt reduction attributable to the expenditure of community funds. Thus, the C/L governs agreements before 1986. At divorce, the community is viewed as already receiving a benefit form the salary, Accordingly, the court determines the reasonable value of the working spouse's services and allocates the amount as community property, the balance then is treated as separate property attributed to the normal earnings of the separate estate. Rule: Funds borrowed during marriage to purchase property are presumptively borrowed on community credit.
Only need intent by 1 party. Tracing is the method by which a spouse establishes his/her interest in a contested property. Thus, a tort creditor cannot reach the SP of the non-tortfeasor spouse. Anna sold her primary residence for $950,000. Fiduciary Duties of Confidential Relationship, -duty of highest good faith and fair dealing, General Rule Governing PreMarital Agreements to change character of assets. Rule: If mortgage payments on SP are made with CP funds, the community estate takes a pro rata share of the property, determined by the amount the debt's principal was reduced with community funds. Rule: When separate and community funds are commingled in a bank account, a purchase made with funds from that account are presumptively Community Property unless the spouse claiming a separate property interest can demonstrate that separate funds within the account were used to purchase the asset. Rule: In California, a valid marriage requires: Definition: A marriage that takes legal effect without license or ceremony when a couple lives together as husband and wife, and hold themselves out to others as a married couple, A marriage in which both the husband and wife believe in good faith that they are married, but in fact are not formally married. (usually will give a vast majority to separate property), PereiraApproach to CP interest in SP Business (1909), The Periera approach applies when the workings spouse's time, skill and effort are the major factors for growth in a business. Cannot waive spousal support if BOTH parties did not have independent counsel, OR if the agreement was unconscionable at the time it was signed. Rule: Each spouse has the exclusive right to manage and control his or her own Quasi-Community Property, as if it were SP, until divorce or death. When does the economic community begin & when does it end? Rule: The Van Camp method should be used when capital investments or qualities inherent to the business itself are responsible for the growth of the business. Reimbursement is limited to direct educational expenses,, such as books and tuition. In general premarital agreements are enforceable except in extreme cases. The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: Quasi-community property is property that a court would classify as community property if the spouses had been domiciled in California at the time of acquisition. Combines with the intention to continue to live separate and apart and intent that marriage is over. ---If you buy land paying part with CP and part with loan, both spouses sign the note, but the grantee is only one spouse: Down payment out of community funds is CP. CP or SP: Education Expenses (State the Rule). In general, a spouse may act unilaterally in his or her control over CP assets and funds while alive and married.
Rule: Quasi-Community Property is distributed as if it were Community Property at death and at divorce, Community Property Division at Divorce: Equal Division Rule (State the Rule). Management control of Separate Property (State the Rule). Putative spouse are granted essentially the same property rights a lawfully wed spouse upon divorce. The community is entitled to reimbursement if, at the time the community property was applied, separate income of the debtor spouse was available, but was not applied to satisfy the obligation. However, when community pays down a student loan and the student loan may have been used for noneducational expenses, the court has allowed the community to be reimbursed subject to any equitable defenses that might apply. (usually vast majority of amount to community), Alternate evaluation date request: Courts require division of assets as close to trial as possible. Community estate personal injury damages shall be assigned to the party who suffered the injuries unless the court determines that the interests of justice require another disposition. Are spouses personally liable for the tortuous conduct of the other spouse? survives the acquiring spouse. Who is lender looking primarily to for satisfaction of debt? Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt. Management & Control of CP: Sale of real property by one spouse without consent of the other (State the Rule). Pension Benefits--if spouse could have retired but didn;t. Divorce: wife can receive payment of community share of her husband's pension benefit even though H has not yet entire. This is result unless interests of justice require otherwise, including economic need. What is required to create a valid marriage in California? Definition: Tracing is the method by which one spouse attempts to identify separate funds that have been commingled with community funds in order to claim as separate property the funds or assets acquired with the funds. Property acquired before the economic community begins, or after it ends, is Separate Property. Exception for debt incurred before marriage. IF CP funds are available, spouse can be reimmbursed. Rule: Pension rights earned both during and outside of the economic community are mixed CP/SP assets. Absent a showing of parties agreement or that title was taken in a form that overcomes the CP, the burden of proof that a particular asset is separate property is on the party so contending. CP or SP: What determines how assets & profits of a business owned by one spouse are classified? Thus, all property acquied by H &W while living in state X will be treated as quasi-community property.
It is enforceable without consideration. Business Ownership: When should the Van Camp accounting be used & what is the calculation method? If the spouse accrues debt for "necessaries," the other spouse's separate property can be reached by creditors. Rule: Whether proceeds of property insurance are classified as CP or Sp depends upon the status of the property insured: CP or SP: Whole Life Insurance (State the Rule). The UPAA requires that the party resisting of a premarital agreement prove that (a) he or she did not execute the agreement voluntarily or (b) the agreement was unconscionable when executed, and he or she (1) was not provided fair and reasonable disclosure of the property rights and financial obligations of the other party, (2) did not waive the right to disclosure, and (3) did not have, or reasonably could not have had, an adequate knowledge of the property and financial obligations of the other party. The earnings of a married person during marriage are not liable for a debt incurred by the person's spouse before marriage so long as they are held in a deposit account in which the person's spouse has no right of withdrawal and are uncommingled with other property in the community estate, except property insignificant in amount. Rule: If one spouse uses community funds to enhance her own SP, the community is entitled to the greater of: Source of Funds: Community funds used by one spouse to enhance other spouse's separate property (state the rule), Rule: In California, there is a split of authority as to whether the community estate is entitled to a reimbursement for community funds spent by one spouse to improve the other spouse's sp. Family code provides that each spouse has the duty to support the other spouse andminor children. Property relationships governed by contract law. Where a third party was a tortfeasor and there was a recovery. Definition: Property in which both spouses possess an undivided one half interest, which neither may partition and which there is not right of survivorship. disparity in EP can only be considered for spousal support and child support. These remedies apply equally against community and quasi-community property. Rule: Generally, if a creditor has the right to attach CP to satisfy a debtor spouse's obligations, the creditor can attach all CP property regardless of whether the debtor spouse has management or control. What if own property as CP but use SP to improve premises? Management & Control of Quasi-Community Property (State the Rule). If a spouse's property is used to satisfy the debt of the other spouse, s/he has the right to reimbursement, with interest, and also may seek repayment for legal fees incurred while seeking reimbursement.