Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

47 Cards in this Set

  • Front
  • Back
California premarital agreement requires
Premarital agreement requires:
1) Independent counsel unless waived in writing
2) 7 days to sign,
3) If no indep counsel, must be filly informed in writing, in language she understand, effect of waiver, and terms of agreement
Waiver of spousal support
Any agreement waiving spousal support is unenforceable on one of 2 grounds
1) No independent legal counsel
2) Provision is unconscionable at time of ENFORCEMENT even if the party was represented by indep legal counsel.
Effect of will to prove community prop
In any proceeding commenced before the death of the person who made the will a statement in a will or revocable trust as to the character of the prop is inadmissible as evidence of transmutation
Prop acquired before 1975 (CP?)
Where CP used to take written title in woman’s name before 75 and didn’t indicate community prop or joint tenancy, prop presumptively wife’s SP.
Arises where T in W before 1975
T in name of both but not explicitly joint tenancy, not as “H & W’
T in name of W and some 3d party before1975.
If acquired after 1975: “since title was acquired after 1975, Married Woman’s special presumption does not apply.”
Marriage of Lucas
Taking T in form that raised presumption of CP is inconsistent w idea that W intended to preserve separate prop ownership I.
Anti Lucas statute
Comes into play where there’s a written title doc: i.e. real estate or stocks
Community funds to improve SP
Expenditures for improvements DO NOT give the community a proportionate share of ownership of the house
Think fixtures doctrine. It’s still separate prop. But community has reimbursement claim: the greater of the cost invested or the amount of enhanced value conferred.
Commingled bank accounts
The mere fact that SP funds are commingled w CP funds DOES NOT transform or transmute the SP into CP, however, B/P on H to show that each asset was purchases w separate funds.
Recapitulation theory DOES NOT prove that CP funds were unavailable when EACH ASSET was purchased.
Family expense presumption
It is presumed that expenditures for family expenses (food, housing, clothing, recreation) were made w community funds (to the extent available) even though t is known that separate funds were also available.
Joint bank accounts & anti-Lucas statutes
Anti Lucas do not apply to joint bank account between H & W because anti Lucas is in family code and bank accounts are governed by probate code.
Where business owned before marriage greatly increases in value during marriage
Van Camp & Pereira
Ask whether major factor in business growth was capital investments or personal skills and labor.
Pereira: Personal skills & effort. Spouse only gets interest on initial value of business. Pay interest on SP (10%) plus value of business at time of marriage, and the rest is CP
Van Camp applies. Where valuable company & asset. Strongly favors SP, where capital investment was a major factor in business’s growth, and spouses skills and efforts were less a factor. Where spouse pd substantial salary and large bonus, court leans toward Van Camp
Value community labor and the rest is SP. I.e., how much would executive in similar position be compensated on the market. Not what actually received MINUS Family expenses. The rest is CP.
Pension benefits
Are CP, deferred compensation. PRO RATION RULE
Years svc while married/total years employment before retirement = CP
What form decree?
1) When & if received decree.
2) Cash out her portion now, give him the pension
3) Court can retain jxn till pension kicks in.
Pension benefit on death (not divorce)
If non participating spouse dies, she does not have a devisable interest in a qualified plan if she predeceases the participant
Federal law trumps state community property law. Here, ERISA governs
Disability retirement and worker’s comp
Spouse argues the benefits are derived from H’s labor. But disability retirements payments and compensation benefits are classified as wage replacement, categorized when received. ???
But S cannot ELECT to defeat nonparticipating Spouses CP rights.
Stock Options (CP?)
If option awarded during marriage but not vested till after marital community has ended, proration formula applies. Test is primary intent of the employer granting the option. If awarded primarily to reward for past services, then option is a form of deferred comp. Use Marriage of Hug proration formula: mnths from date of employment to date marital community ends/mnths from date of employ to date option is exercisable. Multiply fraction by number of shares of stock equals CP.
If stock option awarded as incentive to remain with the company then numerator is mnths from date options GRANTED to date marital community ends.
Professional degree
Not “Property” subject to division on divorce. But Community entitled to reimbursement for contribution to education if it enhanced earning capacity.
Defenses f community has already substantially benefited from the earnings of the educated spouse or
If more than 10 years have elapsed.
Student loans assigned solely to spouse who incurred the debt.
Tort & Contract Liability
Where other spouse was tortfeasor, T recovery is SP. Otherwise he would benefit from the wrongful act.
Where Damages recovered from 3d party, tort recovery is CP because
However, in property division upon divorce or separation, tort recovery awarded entirely to injured S. So long as recovery not EXPENDED or COMMINGLED w community funds.
Or unless justice and interest of justice, incldg economic need, requires otherwise.
Where judgment against spouse, CP is subject to tort liability of either spouse, HOWEVER primary source of payment is based on whether tortfeasor was performing act for the benefit of the community or not. If performing an act for the benefit of the community, tort judgment first satisfied by community funds
Judgment creditor can not reach SP of non-tortfeasor spouse.
Transfer of real estate in CP
Joinder of both S required. Other S may void the transfer with 1 year SOL. Even against BFP!!
But if grantee knew, hand notice, then not BFP even if purchase for value. Other S can void transfer w/out any SOL.
Family Law Attny Real Property Lien
Generally neither S can transfer or encumber their “one-half interest” only the entire interest in CP can be transferred or encumbered. But S can unilaterally encumber her ½ CP interest in Community Prop real prop to pay family law attny representing her in divorce action.
Debts for medical expenses from CP?
Each S has the duty to support the other S and minor children of the marriage.
Prop acquired while couple domiciled in non CP state is quasi CP if would have been classified as CP had it been acquired under the same circumstances in California. On divorce, quasi-CP is treated the same as true CP. Includes, foreign real property.
But situs rule provides that foreign court can’t give a binding decree re foreign land because not in rem jxn. Thus California court will award foreign land to owner spouse and other assets of equal value to non-owner spouse.
Or court can compel spouse to sign a deed under threat of contempt of court, based on in personam jxn.
Quasi-CP on death
Where acquiring spouse dies first, acquiring spouse can only bequeath ½ of quasi CP
w/r/t foreign real prop, upon death situs rule applies, and foreign state estate law applies.
If non-acquiring S dies first, she has no power of disposition over quasi-CP if she predeceases acquiring spouse. Quasi CP does not give non-acquiring spouse and OWNERSHIP INTEREST. Otherwise acquiring S would have lost Property merely upon moving to California. Unconstitutional.
Common law marriage
Not recognized in California, but contract law may apply where contract express or implied by party’s conduct.
Putative spouse require: objectively reasonable and good faith belief that marriage existed.
Assets acquired are Quasi marital property.
CP can only be acquired during existence of the MARITAL ECONOMIC COMMUNITY. Property owned before marriage or acquired after permanent separation is SP
Look at when earned: earned before M but received during marriage is SP, unless earner takes action to change the character of the property.
End of Marital Economic Community requires
End of Marital Economic Community occurs at death of one S or when
1) H&W effect a permanent physical separation
(a) Actual separation and
(b) Intent by at least one S not to resume the marital relationship
Property is presumptively SP even though acquired during marriage
1) Gift, bequest, devise, or descent
2) Rents or profits from SP acquired before marriage
3) Prop received by exchange of SP
Out of state reality is CP if acquired during the marriage
Presumptions w/r/t Characterization of property
The status of property may be determined by presumption. All property acquired during marriage is presumed CP. A presumption that property is CP or is SP may be overcome. Parties may overcome presumption by conduct showing their intent, i.e. taking title in joint tenancy (before marriage), agreeing property will not be CP, i.e. pre-nup.
If title indicates SP or CP, do not TRACE source of funds.
Premarital agreements
(4 characteristics)
1) SOF applies—writing signed by both. UNLESS 1) fully executed or 2) promissory estoppel
2) Limits or waivers on property rights ARE ENFORCEABLE, limits on spousal support MAY BE ENFORCEABLE
3) Must be voluntary/can’t promote divorce. Void if unconscionable when executed or insufficient disclosure of the other party’s WEALTH.
4) Waiver of death rights IS ENFORCEABLE
Transmutation defined
Transmutation: Agreement to Alter Character of Property—DURING MARRIAGE. I.e. from CP to SP. After 1985, agreements to alter the character of property, must be expressed and in writing and signed. Except, no writing requirement for devise of CP in the will of one spouse. Consent of other spouse is DEEMED VALID.
Will as evidence of transmutation
Description of character of property in a will is not binding on either spouse in divorce proceedings.
4 ways couple may jointly hold marital property.
1) Joint tenancy: H&W each own an UNDIVIDED ½ interest w right of survivorship. Each ½ interest is SP! But survivor automatically becomes the owner of the decedents interest as well as her own.
2) TIC: equal PROPORTIONAL ownership interest.
3) CP: each owns UNDIVIDED ½ interest and neither can partition the whole.
4) CP with right of survivorship: CP, but at death, decedent’s ½ vests in surviving S.
Married Woman’s Special Presumption
Before 1975, property titled in married woman’s name was presumptively SP. If title in married couple as TIC, W’s ½ is SP and H’s ½ is CP! At divorce, she gets ¾!
Lucas (CP)
When couple takes title in JOINT AND EQUAL FORM but one S contributed more (SP) to purchase, Lucas holds that the SP contributor is presumed to have made a gift. Later, Lucas MODIFIED BY STATUTE such that at divorce or separation, all property presumed CP unless signed writing characterizing SP. Note: at divorce, REIMBURSEMENT OF SP contributions, w/out interest.
Thus, instead of Lucas presumption of gift, presumption of gratuitous loan (no interest)
Tracing property purchased from commingled funds
2 basic points w/r/t commingled funds & tracing
1) Family expenses presumed to have been paid from CP.
2) When SP used for FAMILY EXPENSES, presumptive GIFT, absent written reimbursement agreement.
Tracing method for SP:
Exhaustion method
1) When an asset was purchased, if at the time of purchase community funds had been exhausted to pay for family expenses, then asset must have been purchased w SP.
Tracing method for SP:
Direct tracing
1) At the time asset was purchased, there were separate funds available, and the owner INTENDED to use those Separate Funds to purchase a SEPARATE ASSET.
Recapitulative Accounting
Recapitulative accounting denied! Cannot merely show that total community income insufficient for total community expenses, and thus all assets purchased from commingled account are SP.
When COMMUNITY funds (or labor) enhance value of SEPARATE PROPERTY
Where property, i.e. business is initially SP, but later increase in value. Q whether S’s Labor (CP) caused the increase or the character of the business was the primary cause of the growth. If Labor, use Pereira Accounting, if merely due to “growth business,” use Van Camp
Feathering own nest
Where Community funds used to improve own SP, no “gift” is presumed, and the community is entitled to reimbursement or amount by which the improvement increased the value of the property, which ever is greater!
Prop Distro at Divorce, equal division requirement
Each spouse entitled to an IN-KIND division of CP, entitled to a ½ interest in EACH COMMUNITY ASSET.
Court will deviate from in-kind division, and award whole asset to one spouse where circumstances warrant, i.e. to avoid uprooting the kids.
Spouse with de facto control over CP must make an accounting for funds “disappeared.”
Prop Distro at Divorce, Setting Aside Prop Settlement or Decree
Divorce settlement may be set aside where there is EXTRINSIC FRAUD or EXTRINSIC MISTAKE
CP & SP Distro at Death
A married person may transfer all SP and ½ of CP by will. Surviving S owns remaining ½ of CP
Co-habitation: requirements for lawful Marriage
California lawful legal marriage requires
1) Legal capacity and
2) Performance of formal legal procedures: witnessed & licensed marriage.
Co-habitation: putative Spouse
Putative S not legally married but has
1) good faith belief
2) based on objectively reasonable grounds
3) that she is legally married.
Once putative S learns that marriage is invalid, no longer accrues property rights.
Management & Control of Separate Property
Each S has exclusive management & control of his or her SP
Management & Control of CP
Each S has equal management & control of CP. Either S acting alone may, buy, sell, spend, or encumber all CP. EXCEPT REAL ESTATE
Management & Control of CP real estate
Both spouses must join in executing any transfer of interest in land that is CP.