Community Property

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one method of characterizing and allocating the assets and debts of a married couple. How to divide upon divorce and death.: Community Property Definition
include Washington, Idaho, Nevada, new Mexico, California, and Louisiana.: Community Property Jurisdictions
a. Separate Property: All the property owned before marriage or acquired thereafter by gift, bequest, device, or descent. b. Community Property: Is essentially all the property that is produced by the labor of either spouse during marriage. What ev: Assets and Debts are Divided into Two Categories
surviving spouse owns all of the community property, his and hers and all of that by the decease. And the decedents get what ever is left, which is there share of the separate property.: Termination by death of a spouse: Intestate
Surviving spouse has rights to half of the community property and their share of the separate property which is all their own and whatever ever the person who died left. The Husband dies and leaves a nephew ¾ of the community property. If this happens t: Termination by death of a spouse: Will
a. Each spouse gets half of the community property and all of there separate property. In California it is 50/50.: Divorce
California's Two Categories of Marital Property All property, real or personal, wherever situated, acquired by a national person during the marriage while domiciled in this state is community property.: California Family Code Section 760 (cp)
California's Two Categories of Marital Property i. All property owned by person before marriage ii. All property acquired by person after marriage by gift, bequest, devise or descent. iii. Rents, issues and profits flowing from sepa: CA family code Section 770: (sp)
Presumption I. Definition: It is an assumption or conclusion that the law either allows to be made or requires to be drawn. Can be conclusive or rebuttable. Allows certain facts to be established without evidentiary proof. If you establish a prelimi: Presumption Definition
Presumption II. Lynam v. Vorwerk Pg. 159: Facts: Administrator for deceased husband sought to have joint savings account with wife declared as community property. What does the court say about this: The husband and wife are in possession of th: Presumption Case Law
Presumption III. Fidelity & Causality Company v. Mahoney Pg. 160: Facts: Father purchased an airplane travel accident insurance policy from the plaintiff insurance company and mailed it to the beneficiary, his son, he then dies on a plane,: Presumption Case Law
Presumption IV. BOTH OF THE ABOVE CASES ARE CURRENT PRECEDENT (Argue Both) a. Presumption 1 (Rule): Property acquired during marriage is presumed to be community property. b. Presumption 2 (Rule): Lynam - Proof of possession of pro: Presumption Case Law
Joint Title A. Do not have the power to give away your spouses community property to yourself as separate property. But, you can give it to your wife or spouse as separate property.: How taking property title affects the presumption that property acquired during marriage is community property.
Joint Title H and W each own half undivided interest with the right of survivorship. a. Created by specific language: A married couple can hold joint title in four ways:

Jiont Tenancy
Joint Title H and W own equal proportionate interest with no right of survivorship. a. Created by specific language or an unspecified grant: A married couple can hold title in four ways:

Tenancy in Common
Joint Title H and W own a half interest and the right of survivorship depends on whether the decedent died testate or intestate. Testate surviving spouse owns half interest or the elected share. Intestate owns the decedents half as well as her: A married couple can hold joint title in four ways:

Community Property
Joint Title the same as community property except that even if the decedent dies testate the surviving spouse owns the decedents half as well as her own. Created by specific language: a married couple can hold title in 4 ways:

Community property with a right of survivorship
Married woman's Special presumption A. Despite the general presumption that property acquired during marriage is presumed to be community property. When written title is placed in a womanâ€™s name alone before 1975 that property is presumptive: Married Woman's Special presumption
Married Woman's Special Presumption a. Section (a): when the title is in the married womanâ€™s name alone presumed the womanâ€™s separate property. Section (b): when title is taken by a married woman and any other person including by the way t: Family code section 803 - acquisitiosn pre 1975
Married woman's Special Presumption: a. Otherwise unspecified grant created community property: Acquisitions post 1975
Married Woman's Special Presumption: A. Facts: Real estate was purchased from joint earnings of husband (d) and wife (p). However, title was taken in name of wife alone, who brought suit to establish that the property was her separate property: Rebuttal for Married woman's special presumption case law
Married Woman's Special Presumption: A. Marriage of Lucas Pg. 182: Facts: H and W purchase a home using both the wifeâ€™s separate property fund and the community property funds and they took title as join tenants. Court Says: It is presumed t: Separate Contributions to Jointly Titled Property Case Law
Married Woman's Special presumption: a. Class Rule: All property held by spouses in joint equal form is presumed to be community property for purposes of distribution at divorce or legal separation. However at divorce any separate property contribut: Separate Contributions to Jiontly Titled Property:

Anti Lucas Law: Class rule
Married woman's special presumption: By a written agreement that the property was tended to remain separate property. c. Both Lucas and anti-Lucas only apply to situations where title is held jointly and equally. Also donâ€™t apply to jo: Seperate contributions to jointly titled propert: Anti Lucas Law:

how to overcome the presumption
Married woman's special presumption: B. Gudelj v. Gudelj: Facts: Mr. Gudelj (d) purchased a one-quarter interest in a cleaners with $1,500 in cash and a note for $10,000. Court Says: $1,500 was SP because it was from the business prior to marr: Credit Acquisitions Case Law
Married woman's special presumption: There is a presumption that loan proceeds acquired during the marriage is CP, and to overcome it, you have to show that the lender relied primarily on separate property when making the loan.: Credit Acquisitions: Intent of hte lender test
Married woman's special presumption: D. Ford v. Ford: Facts: H borrowed money for the farms that H and brother owned, but H and W signed the promissory note. Payments were made by farm income, and trial court found W farm was CP. The Court say: credit acquisitions case law
married woman's special presumption: E. Marriage of Grinius: Facts: H and W bought restaurant. Two loans were taken out. H signed the SBA note and both signed the bank note. The Court Says: The Court restated the intent of the lender test. The: credit acquisitions case law
married woman's special presumption: B. Marriage of Moore: Facts: W purchased property prior to marriage. H argued that community property payments made during the course of the marriage, the trail court erred in not giving credit for the amou: community property contributions that enahnce the value of seperate property case law
married woman's special presumption: C. Ex. 1) Before marriage, H pays 100k for house, and he used 20k down and took 80k loan. 2) Before marriage, H made payments that reduced principal by 5k. 3) During marriage, CP funds are used to reduce th: community property contributions that enhane the value of seperate preoprty example.
Improvements i. When separate property is used to improve community property the separate property is entitled to simple reimbursement (without interest or appreciation). ii. The right of reimbursement is limited to the value of the prop: use of seperate property to improve the community property
improvements i. Marriage of Warren Pg. 211: Facts: Wife was using 38k of community property funds to improve her own separate property. The improvements increased the value of the womanâ€™s separate property. Both parties stipulated that there: use of community proeprty funds to improve seperate property
Domestic Parnership 1. Bigamy 2. Incest: Lawful Marriage Requirements:

Two elements that make a marriage void
domestic partnership: 1. Fraud 2. Coercion 3. Sexual Incapacity 4. Non - Age 5. Lack of Consent 6. Opposite Sex: Lawful marriage requirements:

Elements that render a marriage voidable
Domestic Partnership i. Need a witnessed ceremony. ii. Needs to be duly licensed iii. Recorded or registered: Formal legal requirements
Domestic Partnerships: a. In California there is no common law marriage therefore there is no community property. But, California does recognizes marriages validly contracted in other states. So for example, if a couple enters into a lawful co: Common Law Marriage
Domestic Partnership: a. Death b. Divorce i. What do we need for permanent separation: 1. Physical Separation 2. Intent to discontinue: when a marriage ends
domestic partnership a. Marriage of Baragry Pg. 481: Facts: Husband and wife get in a fight and the husband moves out to live on his boat. The he moves in with his 28yr old girlfriend. The husband maintains continuous and frequent contact with the f: End of the economic community
Domestic Partnership Anything acquired up until the final break is community property.: end of the economic community:

Reconciliation
Domestic Partnership: Are not lawfully married but have a good faith belief that they are lawfully married.: Putative Spouses
Domestic Partnership: Would a reasonable person believe that they were married. The objective good faith belief is usually satisfied if the marriage was duly licensed and registered. If you got a formal marriage we will satisfy this requiremen: Putative Spouse:

Good Faith Belief - Objectively Reasonable
Domestic Partnership: Have to show that the putative spouse really believed that the marriage was valid.: Putative Spouse:

Good Faith Belief - Subjectively Reasonable
domestic partnership: once a spouse learns that the marriage is invalid, then they lose their protective status.: Putative Spouse:

California
domestic partnership: if you didn't get your license: putative spouse:

cause of defective marriage
domestic partnership: e. Wagner Pg. 439: Facts: Husband and wife exchange personal marriage vows. The husband is killed and the wife sues for wrongful death claiming putative spouse status. Court Says: That you need an objective and subjective: putative spouse case law
domestic partnership: i. Property acquired during a putative marriage is called a Quasi-Marital property. It is treated essentially as community property: right of Putative spouse
domstice partnerships: i. Estate of Vargas Pg. 437: Facts: Vargas was married to two women at the same time, and the probate court divided the assets of his estate equally between his legal wife and his putative spouse. RULE: An innocent parti: competing claims case law
domestic partnership a. California Family Code Section 300: a personal relation arising out of a civil contract between a man and a woman. California does not recognize same sex marriages.: same sex domestic relatinoships:

California Family Code Section 300
domestic partnership 1996 California passed this prop. That says that California will not recognize same sex marriages that were contracted elsewhere.: same sex domestic relationships:

Prop 22
Unmarried cohabitation a. Marvin v. Marvin Pg. 456?????????????????: Facts: Michelle Marvin (p) maintained that she and Lee Marvin (d) had entered into an express and/or implied agreement to share equally in all property acquired while they li: What rights to unmarried cohabitants upon dissolution or death
Prenups a. Marvin v. Marvin Pg. 456?????????????????: Facts: Michelle Marvin (p) maintained that she and Lee Marvin (d) had entered into an express and/or implied agreement to share equally in all property acquired while they lived together. T: prenups definition
prenups III. Marriage of Dawley Pg. 82: Facts: Husband and wife who maintained an intimate relationship for 3 years and at some point they were both contemplating separation and the wife discovers that she is pregnant. She is scared that a non: prenups case law
prenups: IV. Marriage of Noghrey Pg. 88: Facts: husband and wife sign a prenup agreement that in an event of a divorce the husband will give the wife the house, 500k or half of the assets which ever was greater. Seven and a half months later s: prenups case law
prenups: i. Agree before we get married that you will not have to pay me spousal support anytime. Traditionally spousal support waiver clauses were unenforceable per se.: spousal support waiver
prenups The Marriage of Bonds Pg. 96: Fact: They were getting ready to go to Vegas to get married, two days before they went to Vegas Barryâ€™s attorney brings a prenup and they signed it. The wife contended the enforceability of the prenup be: spousal support waiver case law
prenups: a. Rule: Prenuptial agreements have to be voluntary. To be enforceable the prenup must be executed voluntarily. The court must find independent council (each party represented) or such party has waived the right after being advised to: california prenuptial agreement act rule
prenups: a prenup can be rendered unenforceable if the party can show that it was unconscionable when executed and the party did not have and could not have had adequate knowledge of the assets of the other party and did not waive the right to: california prenuption agreement act:

unconscionabiliy coupled with Non Dislcosure
prenups: These are not enforceable if the party did not have independent council or the enforcement would be unconscionable at the time of enforcement as apposed to execution.: Statute of Frauds Rule
prenups: a promise is executory when it has not been fulfilled. Execution of a promise substitutes a writing because like a writing it proves that a promise has been made.: Statute Frauds: Two Exceptions:

Executed Oral Promise
prenups: 1. Frias Case: Fact: Man orally promised to make his wife the beneficiary after they are married. Later he changes his mind and names the children from his previous marriage beneficiaries. After the death the wife was able to enforce: Statute of Frauds: Two Exceptions

Exectured Oral Promise Case
Prenups: a promissory is estopped from asserting the statue of frauds when the promise has relied on his or her detriment on an oral premarital agreement. 1. Estate of Sheldon Case: Rule:The husbandâ€™s oral premarital promise was assert: Statute of Frauds: Two Exceptions:

Estoppel to Assert the Statute of Frauds
Transmutation: a. Estate of Raphael Pg. 113: Facts: all the property was transmitted during marriage. Court Says: An oral agreement is ok and you can show evidence of the oral agreement by looking at the way the parties dealt with the property: Before 1/1/85 case law
transmutation: b. Marriage of Jafeman Pg. 116 i. Class Synthesized rule of Raphael and Jafeman: You can show evidence of an oral agreement through the way that the parties acted toward there property, but testimony evidence by one party a: Before 1/1/85 case law
transmutation: Evidence of oral agreement more then just testimony. For post 85 we need a writing and we need an express declaration.: Post 1/1/85 Section Code
transmutation: b. Estate of McDonald Pg. 121: Facts: Husband and wife who both have children from previous marriage when they get married. Husband receives a disbursement from pension which the wife has a community property interest in. Wife t: post 1/1/85 case law
transmutation i. The writing requirement does not extend to gifts between spouses of items of a personal nature that are principally used by the spouse to whom the gift was made that are insubstantial in light of the financial circumstances of: post 1/1/85

exception to rule (personal gift exception)
Transmutation: A statement in a will as to the character of property is not admissible as evidence of a transmutation of the property in any proceeding commenced before the death of the testator: post 1/1/85

statements of will not admissible
management and control of CP: Husband and Wife have equal management control. Either spouse acting alone may buy, spend, and encumber all of the community property. This is only during the lifetime.: Management and control of community property General Rule
management and control of cp: Both spouses must execute any instrument by which community real property is sold, conveyed, encumbered, or leased for more then a year.: Exceptions: Real Property General Rule
managment and control of community property: If community property is in title in one spouseâ€™s name and a third party buys property, then such transfers are presumed valid. The Non Consenting spouse may overcome this presumption by showing t: exception real property:

one spouse on title
management and control of community property: 3. Lezine v. Security Pacific Financial Services Pg. 386: Facts: Husband forges a signature to use community property to secure a loan. Wife divorces him. Court Says: that generally the community e: Exceptions real property case law
management and control of cp: the bank is held harmless by all claims by the depositorâ€™s spouse. The legal remedy for this is that the other spouse can add their name to the account.: exceptions personal property:

bank accounts
management and control of cp: a spouse who is operating has primary management and control of the business. The spouse may act alone, but must give prior written notice of sale or other disposition of all or substantially all use of the busine: exceptions personal property:

Business Exception
management and control of cp: Generally a spouse may not sell, convey or encumber community property used as a family dwelling or community household furnishings or the clothing of the spouse or minor children without written consent. The non-: exceptions personal property:

personal belongings exception
management and control of cp: Generally a spouse may not make a gift of community property without the written consent of another spouse. 1. Can exchange community property for fair and reasonable value. 2. Such gifts are not void: exceptions general limitations on managerial power:

Gift of community property
management and control of cp: 1. Spreckels v. Spreckels Pg. 400: Facts: During the marriage the person gave money away. The wife did not consent. The wife did not consent and we want our share of this community property. Court Says: that a wif: exceptions general limitations on managerial power:

ratification case law
management and control of cp: During the donorâ€™s lifetime, the non-consenting spouse may revoke entirely. After the death of the donor the unauthorized gift is considered an authorized testamentary gift of half the spouses property.: exceptions: general limitations on managerial power:

avoidance
management and control of cp: 1. Fields v. Michael Pg. 405: Facts: Before death husband wrongfully made gifts of community property without the wifeâ€™s consent. Rule: when a husband makes an unauthorized gift of community property to a third: exceptoins: general lmitations on managerial power:

avoidance case law
managment and control of cp: 1. Estate of Bray: Facts: The husband without the wifeâ€™s consent made an account with the son and made bonds together. The wife says that these are unauthorized gifts and the son says that the community made fair: exceptions: general limiations on managerial power:

Exchange property for fair and equal value case law
management and control of cp: 1. General Rule: Spouses owe a fiduciary duty to each other. 2. Fiduciary Duty: Continues until the community property is divide by the parties or the court. Comment pg. 423 3. Marriage of Schultz: Cour: exception: general limitations on managerial power:

fiduciary duty of spouses
tracing: Generally when separate property funds and community property funds are commingled into a single account at divorce or death the owner of the separate property funds may attempt to trace the funds to a separate property source. The pr: tracing definition
tracing: when you commingle separate and community property funds you are running the risk that you wonâ€™t sufficiently trace the separate property source.: tracing problem
tracing: Available community property funds are presumed to have been used to pay family expenses therefore separate property funds are deemed to have been used to pay for the family expenses only when the community property funds have been ex: family expense presumption
tracing: a. See v. See Pg. 217: Facts: Husband and wife get a divorce. During the marriage the husband commingled his separate property with community property and at divorce he tried to push an accounting method onto the court to get his sepa: family expense presumption case law
tracing: way to determine what is separate from community property. LOOK IT UP IN BARBRI.: family expense presumption: exhaustion method
tracing: b. Estate of Clark Pg. 139: Facts: Husband has three children prior to the marriage and has oil interest which he gifts to the interest of his children. One of the children die. When the husband died he left a will giving the bulk of: onerous or lucrative acquisitions case law
tracing: c. Andrews v. Andrews Pg. 142: Facts: The son claims an old contract with the father and mother by which the son and the sons wife would care for the mother and father in return for the parents property upon death. The son agrees and: onerous or lucrative acquisitions case law
tracing: d. Downer v. Bramet Pg. 146: Facts: Husbands employer gives the husband 1/3 interest in a ranch and the wife claims that her share of that interest in community property and husband says no it was a gift, therefore it is separate prop: onerous or lucrative acquisitions case law
Business Profits: can be managing a stock portfolio or collecting rare coins. As long as significant community property labor is being contributed into the enterprise the California considers it a business.: California Law construes the Term business very broadly
Businesss Profits Value the manager service at going market value and subtract the family expenses paid out of the business profits and this equals the community property share. (used when it is the character of the business itself for the inc: Business Profits: 2 methods of Business Apporitionate Used:

van kamp accounting method
Business Profits We first impute the fair rate of return (10%) on separate property and add this to the separate property principal and this give us the separate property and the remainder will be community property. (when increase is primaril: business profits: 2 methods of business apportionate used:

Pereira method
special characterization problems; i. Before Marriage: then separate property. ii. During marriage: community property. 1. Exception: at divorce personal injuries are awarded entirely to the injured spouse. If the personal injury fun: Personal injury awards:

Cause of action arises when the injury was inflicted
life insurance proceeds: you pay a certain amount of money to get a certain amount of life insurance for a term (usually one year term). After one year you either renew it or it goes away and once it goes away there is no value.: Two types os life insurance:

Term life insurance
life insurance proceeds: Logan Case â€“ the proceeds are determined by how the last payment was made. For term, even if you have an uninsurable person, you are able still to renew it since term has a right of renewal. When an uninsurable spouse is a: Term life insurance at divorce
life insurance proceeds: buy your insurance and you pay your premiums and as time goes on your premiums collect into an acct which you can withdraw or borrow against.: whole life insurance
life insurance proceeds: Cash value is community property in proportion that the community property funds were used to pay the premiums.: whle life insurance proceeds at divorce
life insurance proceeds: they get divided up into separate property and community property in proportion to payouts. If the decedent has named someone other than spouse, then that is deemed a testamentary gift and half goes to the beneficiary: proceeds at death (term and whole).
Pensions: Retirement benefits for when you retire you get a monthly amount based on a percentage of your final salary or your highest salary. Pension funded by some combination of employee salary deductions and contributions by your employer.: Pensions
Pensions: Pensions are classified to the extent that the right to the benefits was earned during marriage. Regardless of when the benefits are actually paid.: Pensions General rule
Pensions: if you are earning your pension money during marriage to the extent that the pension is funded during marriage that is community property.: Deferred compensation (pensions court term)
Pensions: some companies will allow an employee to take a cash settlement in lue of the pension benefits when the employee leaves the company. Once you come back the employer may allow you to pay back some money and reinstate your pension. But: Reinstatment
Disability Benefits: Workers Compensation (receive when you are injured on a job). California treats these the same and so the umbrella term is Disability Benefits. Disability benefits are treated as wage replacement, replace regular earnings.: Disability Pay
Disability Benefits: to the extent that disability benefits are used to replace marital earnings they are considered community property. If it replaces non-marital earnings, then separate property.: Disability Benefits General rule
Severance Pay: I. Marriage of Wright Pg. 357: Facts: H and W separate on 6/23 and after he gets severance pay. She argues that the money is in return for past employee services. She makes this argument before it was earned during marriage therefore: Severance Pay case law
Education and Training: a. General Rule: Post marriage earnings that are the result of pre-divorced education paid for with community funds remain separate property. There is a right of reimbursement with interest. To state the reimbursement r: Professional Degrees and Licenses General Rule
Education and Training: Post marriage earnings that are the result of pre-divorced education paid for with community funds remain separate property. There is a right of reimbursement with interest. To state the reimbursement right at divorce u: Professional Degrees and Licenses

Loans from Education: general rule
Education and Training: i. Can get reimbursed for direct cost like tuition and books. ii. Living expenses are also reimbursable.: Professional Degree and Licenses:

What are the reimbursable Expenses
Education and Training: i. Reimbursement may be reduced by the community when the community has already benefited from the education training by the time that the divorce comes around. 1. Less then 10 year from the payments and the divor: Equitable Defenses
Business nad Professional Goodwill: I. Goodwill: mathematically it is the total value of the company minus the value of the physical assets. Gain good will. II. General Rule (business goodwill): when it was generated determines whether it is c: Business and Professional goodwill
tracing: when separate funds are in fact used to pay family expenses, a gift to the community is presumed. In other words, the separate estate has no right of reimbursement when community funds are later deposited.: two important presumptions for tracing funds in a commingled accout:

gift presumed when separate funds used to pay family expenses
tracing: The separate property proponent may show that at the time he purchased the asset whose character is contested, the community funds in the account had already exhausted by payment of family expenses. Therefore, the asset must have been: two permissible tracing methods:

exhaustion method
choice of law: I. (1) When the forum court could reasonably apply the law of more then one jurisdiction. (2) When the choice of which jurisdictions law would change the outcome of the issue.: choice of law issues arise
chice of law: a. How does California treat property acquired by married persons before they moved to California? II. How does California treat out of state real property acquired by California couples owned by them at death and divorce.: two issues
choice of law: is any property acquired by either spouse that would have been community property had the spouse then domiciled in California at the time of acquisition. During marriage quasi community property is treated as that spouses separa: how does california treat property acquired by married persons before they moved to california:

Quasi community property
choice of law: At divorce quasi community property is treated as community property. (That means that the non-acquiring spouse gets a half interest.).: how does california treat property acquired by married persons before they moved to california:

divorce
choice of law: If the claimant spouse is domiciled in California the property at issue is still characterized as quasi community property even if the acquiring spouse never lived here.: persons before they moved to california:

divorce: claimant spouse domiciliary, acquiring spouse is not
choice of law: distinguish between whether the property was acquired in a community property state or a common law state. Community property state quasi community property is treated as community property at death. If purchased in a non commun: how does california treat property acquired by married persons before they moved to california:

death
choice of law: the survivor has a half interest. In that case treated like community property.: how does california treat property acquired by married persons before they moved to california:

death intestate
choice of law: have to distinguish between survivor and decedent. Survivor gets a one half interest in decedents community property. Therefore treated like community property. The decedent does not have any interest in the survivorâ€™s communi: How does California treat property acquired by married persons before they moved to California?

death; testate
choice of law: California courts get to decide what happens to out of state real property acquired by California couples. The Supreme Court has held that the way that they will deal with it is to treat it as community property.: How does California treat out of state real property acquired by California couples owned by them at death and divorce.

at divorce
choice of law: California does not get to decide what happens to the property. Out of state real property acquired by California couples is probated in the state where real property is located.: how does california treat out of state real proeprty acquired by california couples owned by them at death and divorce:

at death

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