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28 Cards in this Set

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  • Back
What is separate property?
Under community property law, seprate property is either
(1) Property owned prior to marriage
(2) Property gained during marriage by gift, will, or inheritance
(3) Property acquired via expenditure of separate funds
(4) The rents, issue, and profits of separate property
What is community property?
Under community property law, community property is all property, other than separate property, acquired by either spouse during marriage.
What is the community presumption?
Under community property law, it is presumed that all assets acquired during marriage are presumptively community property.

Absent a showing of the parties' agreement or that title was taken in a form that overcomes this presumption, the BOP that a particular asset is SP is on the party so contending.
Does the community property system apply to registered domestic partners?
Yes. As of 1/1/2005, community property applies to registered domestic partners. It is available only to (1) same-sex couples, and (2) elderly opposite-sex couples receiving social security benefits.
When does the economic community end?
Under community property law, the economic community ends when there is permanent physical separation with no intent to resume marital relations.
Is it a question of fact or law whether the parties intended to resume marital relations?
It is a question of fact.
How should ex-spouses divide up property that they failed to address during divorce?
Under CA community property law, the court retains CONTINUING JURISDICTION to award CP that was not previously adjudicated, and it will be divided 50-50 unless the court finds that THE INTERESTS OF JUSTICE REQUIRE AN UNEQUAL DIVISION.
How is property divided upon divorce?

Does disparity in earning power matter?
Absent a property settlement agreement, ALL property must be divided 50-50 unless economic circumstances warrant awarding certain assets WHOLLY to one spouse (each spouse still ends up with 1/2 of value of all CP).

Disparity of earning power is ONLY relevant to the question of spousal support or child support, not division of assets.
What sorts of assets are often awarded to one spouse in their entirety because of "economic circumstances?"
These are often awarded to one spouse in their entirety because of "economic circumstances:"
(1) Family residence if loss would uproot minor children
(2) Shares of a closely held corporation
(3) Pension assets
What are the statutory exceptions to the general rule that each spouse gets 50% of the estate?
The statutory exceptions to the 50-50 rule are
(1) Where one spouse misappropriates CP
(2) Where one spouse has incurred educational debts
(3) Where one spouse incurred tort liability not based on acitivity for the community
(4) Where community liabilities exceed assets, the relative ability of the spouses to pay is considered (to protect creditors)
Can one spouse make a gift of community property without the other spouse's consent?
No. Under CA Community Property Law, neither spouse can make a gift of community property without the other spouse's WRITTEN consent.

If a gift is made improperly, then the other spouse can
(1) Set it aside in its entirety; or
(2) At divorce, opt for offsetting her CP assets to recover 1/2 her CP interest in the gift; or
(3) At death, set the gift aside as to her 1/2 of the CP.
If a now deceased spouse made an improper gift of CP, from where does the other spouse get her reimbursement?
She can get it either from the beneficiary of the gift OR from the deceased's estate.
What is the exception to the rule that one spouse cannot make a gift of community property without the other spouse's written consent.

Why does this exception exist?
If the gift is a US Bond, payable upon the spouse's death to a 3rd party.

It is not recoverable because of federal preemption.
When a spouse is writing a will, which CP can he include in his will?
Under CA CP Law, each spouse has the power of testamentary disposition over ALL of his or her SP, but over only 1/2 of the CP.
What happens when one spouse attempts to will away more than 1/2 of the CP, but also makes a provision in the will for his spouse?
Under CA MP Law, the "widow's election will" comes into play. The wife must choose between accepting the will in its entirety or contesting it in its entirety. She cannot choose to revoke his gift of the CP and accpt his gift of the provision for her.
How should you classify funds borrowed during marriage and goods purchased on credit during marriage?
Under CA MP Law:

(1) Funds borrowed during marriage and goods purchased on credit during marriage are CP.

(2) BUT borrowed funds and credit purhcases are ultimately classified according to the INTENT OF THE LENDER.
In marriage, what is the fiduciary duty?
Under CA MP law, spouses are subject to fiduciary duties that arise from their confidential relationship. It imposes a duty of highest good faith and fair dealing.
When does one presume that the marital fiduciary duty has been breached?
(1) Under CA MP law, when one spouse gains an advantage from a transaction, a PRESUMPTION of undue influence arises, and that spouse has the BOP to show that he did not breach his fiduciary duty.

(2) Under CA MP Law, a grossly negligent and reckless investment of community funds is a breach of the spouse's fiduciary duty.
When is a premarital agreement valid?
Under CA MP Law, a premarital agreement is valid if it is in writing, VOLUNTARILY signed by both parties.

Voluntarily = Independent legal counsel, 7 days to review, if no counsel, fully informed in writing in accessible language and a doc saying got this info.

Exception 1: oral agreement fully executed

Exception 2: Estoppel based on detrimental reliance
What are the defenses to the enforceability of a premarital agreement?
(1) The agreement promotes divorce.
(2) That is was not signed voluntarily - independent counsel, 7 days to review, if no counsel, then fully informed in writing and a certifying doc, no duress or fraud, any other considerations.
(3) Unconscionability of the agreement when made AND the party could not have had adequate knowledge of the wealth of the other party, and did not waiver her right to disclosure of such wealth

(4) If for spousal support, not represented by counsel OR unconscionable at time of enforcement.
or enforced.
What is the magic date in transmutations of property during marriage?
Under CA MP law, oral transmutations were permitted prior to 1985, whether they were based on express agreement or implied-in-fact agreement.

On or after 1/1/1985, the agreement must be (1) in writing, (2) signed by the spouse whose interest is adversely affected, AND (3) expressly state that a change in ownership is being made.
What is the exception to the CA MP transmutation requirements?
Under CA MP, gifts of tangible property of a personal nature, which are not substantial in value and taking into account the circumstances of marriage, are not transmutations.
What is the married woman's special presumption?
Under CA MP law, where CP was used to take WRITTEN TITLE in a married WOMAN's name BEFORE 1975, and the title did not indicate CP or a joint tenancy was intended, the property is PRESUMPTIVELY the WIFE'S SP.
Prior to 1975, is the married women's special presumption rebuttable as against a 3rd party BFP who buys an asset from W in reliance on the fact that it is in W's name?
NO. If BFP buys the property from the wife in reliance on the fact that it is in the wife's name, and that he therefore thinks it is hers, the presumption is not rebuttable.

This rule protects the BFP.
Hobie and Winkie are married. BEFORE 1975, community funds are used to purchase HOUSE. What are the ownership interests if the title is taken in the mane of "Winkie Gates and Sam Slade" (Winkie's brother)?
Each has a 1/2 ownership interest as tenants in common.
How does the married women's special presumption apply to a purchase of property before 1975 with title taken in the name of
(1) Winkie Gates?
(2) Hobie Gates and Winkie Gates, husband and wife?
(3) Mr. and Mrs. Hobie Gates Gates?
(4) Hobie Gates and Winkie Gates?
(1) The home is Winkie's SP.
(2) The home is CP.
(3) the home is CP.
(4) A TIC is created. Hobie's 1/2 is CP. Winkie's 1/2 is her SP. So overall, Winkie gets 3/4 and Hobie gets 1/4.
When does the married women's special presumption apply?
(1) _______
(2) _______
(3) _______
Under CA MP law, the married women's special presumption applies if, before 1975,
(1) title was taken in W's name alone
(2) Title was taken in the name of W and H, but NOT in joint tenancy form, NOT as "H and W" and NO as "Mr. and Mrs. Gates"
(3) Title is taken in the name of the W and some 3rd party.
After 1975, do any presumptions arise when the community takes title to property in the wife's name alone?
Yes. Under CA MP Law, when community funds are used to purhcase property in the name of one spouse only, a GIFT presumption arises, unless it was structured as a gift to insulate it from creditors.