Bar Exam, Community Property

Front 1

What's the prerequisite for community property to exist?

Back 1

Traditionally it was that the people be married. However, in California (check Washington), community property extends to people who believe they are legally married, but there was an impediment to the marriage

Front 2

What's the rule for recognizing a foreign marriage?

Back 2

A marriage contract outside of California (no matter where), is valid in California if valid under the laws of the jurisdiction in which it was celebrated.

Front 3

What's the public policy exception to recognizing a foreign marriage?

Back 3

Even if otherwise valid, it will not be recognized as valid if it violates some strong public policy of California

Front 4

Explain the presumption in favor of the validity of marriage

Back 4

There is a high burden of proof on the party attacking the marriage to prove that the marriage is invalid. This is true of a second marriage as well.

Front 5

What is a common law marriage and is it allowed in California

Back 5

A nonceremonial or informal marriage by agreement, entered into by a man and a woman having the capacity to marry, without compliance with statutory formalities. They are not allowed in California, but California will recognize it if it was valid in the foreign state.

Front 6

What is the putative spouse doctrine?

Back 6

One that has been solemnized in due form and CELEBRATED in GOOD FAITH and the parties COHABITATED, but because there is some legal infirmity, the marriage is void or voidable. Only the spouse who does not know of the invalidity will be treated as the putative spouse.

Front 7

What marriages are void in California?

Back 7

Incestuous marriages: between parents and children, ancestors of any degree, brothers and sisters (including half blood), and between uncles and nieces or aunts and nephews. Bigamous marriages: a subsequent marriage contracted during the life of a party's husband or wife unless the former marriage was dissolved or annulled before the subsequent marriage.

Front 8

When are marriages voidable in California?

Back 8

(1) Nonage (unless the underage person cohabited voluntarily after 18), (2) former spouse believed dead (for five years), (3) unsound mind, (4) fraud or force (unless they continued to cohabitate after discovery of the fraud), (5) incurable physical incapacity (normal copulation, not the ability to have children)

Front 9

What is the effect of a putative marriage if there is no legal spouse (e.g., the spouse is dead)

Back 9

The property is considered community property (or, quasi-marital property)

Front 10

What is a meretricious relationship?

Back 10

One in which two people enter, or attempt to enter, into marriage KNOWING OF SOME IMPEDIMENT preventing a valid marriage.

Front 11

Does a meretricious relationship create community property?

Back 11

No, not unless the parties created a valid contract to treat their property as community. Some courts treat the property as a constructive trust.

Front 12

What defines a nonmarital relationship?

Back 12

One in which the parties cohabitated as husband and wife with no intent or attempt to enter into marriage. They do not need to cohabitate full time

Front 13

How do California courts divide property in a nonmarital relationship?

Back 13

They use a contract approach as well as equitable principles like quantum-meruit

Front 14

How do you establish a domestic partnership in California?

Back 14

(1) a common residence, (2) the other person is not married or in another partnership, (3) over 18, (4) are of the same sex (unless they are over 62 and one is on Social Security), (5) both can consent

Front 15

What happens when a domestic partnership is terminated?

Back 15

If there is a dissolution or nullification, the partners have the same benefits as married parties.

Front 16

What are the rights of domestic partners in California?

Back 16

Registered domestic partners have the same rights, protections, and benefits and are subject to the same responsibilities, obligations, and duties under the law (including community property).

Front 17

In the context of community property, at what time is the character of property set?

Back 17

It is fixed as of the time it is acquired unless changed in some manner recognized by law.

Front 18

In the context of community property, what is separate property generally?

Back 18

Includes all property acquired by the spouse before marriage as well as property acquired after marriage by gift, bequest, devise, or descent. It includes the earnings of that property. It also includes property acquired after separation or dissolution.

Front 19

In the context of community property, what property is characterized as community property?

Back 19

All property, real or personal, wherever situated, acquired by either or both spouses during marriage, while domiciled in California, including earnings from the property.

Front 20

What interest does each spouse have to community property?

Back 20

They are present and equal.

Front 21

In the context of community property, explain how the burden of proof and presumptions operate

Back 21

The initial burden of going forward lies with the one claiming property is community by proving there was a marriage and it was acquired during the marriage. Once that burden is met, however, the presumption that property acquired during marriage is community kicks in, so the burden shifts to the one claiming property is separate.

Front 22

How do you overcome the presumption that property is community property?

Back 22

(1) tracing, (2) proof of an agreement to the contrary, or (3) proof the property was acquired as a gift

Front 23

In the context of community property, what is the special rule about a married woman's separate property?

Back 23

If property was acquired by a written instrument prior to Jan. 1, 1975, then the presumption is that it was her separate property.

Front 24

In the context of community property, what's the rule about title documents?

Back 24

The presumption is that they intend to hold their property in the manner indicated on the title documents. If the title documents don't explain the interests, then the court presumes that it's community property.

Front 25

In the context of community property, what is the presumption about bank accounts?

Back 25

Even if they are not listed together on the deposit agreement, the funds are presumed to be community property. The presumption can be rebutted by (1) tracing, or (2) a written agreement

Front 26

In the context of community property, state the time of acquisition doctrine

Back 26

It has to be acquired during the marriage. If they are separated (and the parties' conduct demonstrates they don't intent to resume), then it stops. If the acquisition was initiated but incomplete at the time of marriage, then it “relates back” to the time that title passed. If earnings were earned but not paid, then those are property too.

Front 27

What is the apportionment doctrine in the context of community property?

Back 27

If an asset is acquired over time, then the community and separate property interests will be prorated according to the respective contributions. If applies to property that would have been separate property but where each spouse contributed to improving it. Also applied to property purchases initiated before marriage, but completed afterwards, and the converse too.

Front 28

In the context of community property, what is the rule about wages?

Back 28

Wages or salary earned by either spouse is community property, and it may include employee benefits

Front 29

In the context of community property, what is the rule about personal injury damages?

Back 29

If the cause of action arose during the marriage, then it's community property regardless of whether they are special damages or damages for pain and suffering.

Front 30

In the context of community property, what is the rule about life insurance?

Back 30

Proceeds from the policy are community property if the premiums have been paid out of the community estate, no matter who is named beneficiary.

Front 31

In the context of community property, what is the rule about property insurance?

Back 31

The proceeds of property insurance take on the character of the insured property.

Front 32

In the context of community property, what is the rule about pension and retirement rights?

Back 32

Courts consider them deferred compensation. So the characterization depends of the marital status at the time the rights were earned. The court might have to apportion them.

Front 33

In the context of community property, what is the character of disability pensions?

Back 33

They are community property to the extent that they were intended to replace earnings during marriage. Since some earnings may be pre- or post-marriage, the court might have to apportion them.

Front 34

In the context of community property, what is the character of worker's compensation benefits?

Back 34

They are community property to the extent that they accrued during marriage.

Front 35

In the context of community property, what is the character of stock options?

Back 35

Options are probably earned at the time granted, not the year they are exercisable.

Front 36

In the context of community property, what is the value of a business or professional practice?

Back 36

LOOK THIS UP. California has two conflicting rules: Van Camp and Pereira

Front 37

In the context of community property, what is the character of a professional degree or license?

Back 37

The earning capacity is not community property, but the value of th license is community property. If there are outstanding loans, they continue to be the sole liability of the student.

Front 38

In the context of community property, what is the rule about out of state real property?

Back 38

When California-domiciled spouses use community funds to purchase out of state real property, it is community property under California law. While the California court cannot directly affect the title to the land, it can direct the parties to make a conveyance since it has in personam jurisdiction over the parties.

Front 39

In the context of community property, what is quasi-community property?

Back 39

Property acquired outside of California that the court will treat as community property.

Front 40

What are some of the ways that property can be transmuted under community property law?

Back 40

Through marital agreements (pre- and post-nuptial), interspousal gifts, and the commingling doctrine

Front 41

What does it take to make a premarital agreement enforceable?

Back 41

Must be in writing, signed by both parties, but consideration is not needed when followed by marriage. Amendments or revocations are enforceable without consideration. Oral agreements might be enforceable under the usual exceptions to the Statute of Frauds.

Front 42

What are three circumstances by which premarital agreements are unenforceable in California?

Back 42

If it was (1) not executed voluntarily, (2) it is unconscionable, or (3) the agreement creates incentives for the parties to get divorced.

Front 43

For a premarital agreement to be considered not voluntary, what to the court have to find (in writing or on the record)?

Back 43

The adverse party was not represented by legal counsel, there were at least seven days to consider it before marriage, was fully informed of the terms and effect (if not represented by counsel), had capacity to enter the agreement, and any other relevant factors

Front 44

What is the rule about transmutation agreements in community property?

Back 44

The spouses can agree to transmutate the character of community or separate property without consideration. It has to be in writing explicitly stating that the character will change. The spouses have a fiduciary duty toward one another, and there's a presumption of undue influence in a property transaction.

Front 45

What is the rule about interspousal gifts in the context of community property?

Back 45

Oral transmutations aren't generally effective, but the spouses can make gifts of clothin, wearing apparel, jewelry, and other personal targinble articles used solely or principally by the donee spouse and not substantial in value considering the circumstances of the marriage.

Front 46

What is the doctrine of commingling in community property?

Back 46

If community and separate property are mixed and the owner of the separate property cannot clearly identify the amount of the separate property, the whole mixture will be community property, but not if the contribution is insignificant.

Front 47

What is the rule about contributions in community property?

Back 47

These are funds expended for the acquisition or improvement of property. If community contributions are made to separate property by a managing spouse to maintain his separate property, then there's a right of reimbursement. If from separate to community property, then there is a right of reimbursement.

Front 48

What is the general rule about management of personal property under California community property law?

Back 48

Either spouse alone is authorized to manage, control, and dispose of community personal property FOR VALUE during his lifetime. (There's a different rule for real property.) A spouse cannot make a gift (or dispose of property for less than value) without written consent, so the gift is voidable (ex.-paying gambling debts). They cannot sell furniture or home fittings without written consent either.

Front 49

What is the rule about management decisions in a business under California community property law?

Back 49

The managing spouse can act alone in all transactions, but must give prior written notice to the other spouse of any disposition of all or substantially all the personal property used in the business.

Front 50

What is the rule about good faith under California community property law?

Back 50

Each spouse must act as a fiduciary, which requires the managing spouse to make full disclosure of all material facts and provide equal access to all information. The community has a right of reimbursement when a spouse acts in bad faith.

Front 51

What is the general rule about management of real property under California community property law?

Back 51

Either spouse has management and control of community real property. However, if the propery is leased for longer than one year, or it's sold, conveyed, or encumbered, then both spouses must join. This means that each party must execute the instrument of conveyance. If the transferee had notice of the marriage, then the agreement is not specifically enforceable. So the other spouse can set it aside.

Front 52

What is the general rule about liability for debts under California community property law?

Back 52

The marital community is liable for debts incurred by either spouse before or during the marriage. The earnings of a married person are not liable for any debts incurred by the person's spouse before marriage, however. After those earnings are paid, they are only liable if the spouse can't touch them and they are not commingled.

Front 53

What is the rule about tort liability under California community property law?

Back 53

A spouse's interest in community property is liable for death, injury, or damage caused by that spouse. The plaintiff may reach community property. If the liability is based on an act to benefit the community, then the liability must be satisfied out of the community property first, the tortfeasor's separate property second. If not, then tortfeasor's separate property first and community property second.

Front 54

What is the special rule about liability on debts incurred for necessaries of life under California community property law?

Back 54

The separate property of a married person is liable for the debts incurred for the necessaries of life of the person's spouse while the spouses are living together.

Front 55

What are the obligations for support between husband and wife?

Back 55

They owe each other mutual obligations for support, and while living together, a married person must support his or her wife out of separate property if there is no community property. If separated, then no such obligation.

Front 56

What is the liability of community property for child support?

Back 56

The community property is liable for child and spousal suport obligations of either spouse arising out of a prior marriage and for extramarital support obligations arising during marriage. Separate property is not liable for prior marriages or extramarital support. But there's a right of reimbursement.

Front 57

What is the general rule for reimbursement in the context of community property?

Back 57

When property that is not liable for debts of a certain type are actually applied to the satisfaction of the debt, then there is a right of reimbursement of the property. It arises no matter which spouse applies to propert, whether the property is applied voluntarily or not.

Front 58

What are some important time limitations for asserting a right of reimbursement in community property?

Back 58

For payment of a debt, there is a three year limitation from the time the spouse knows he has a right (including breach of fiduciary duty), or during a divorce proceeding. For a tort liabilities, seven years.