California Community Property

Front 1

All prop acquired during existence of the marital ec community by the labor of either spouse is

Back 1

community prop (CP)

Front 2

CP system in CA now applies to

Back 2

registered domestic partners (same-sex couples & elderly opposite sex couples)

Front 3

Characterization of prop in CP system is process of

Back 3

determining whether an item of prop is a spouse's separate prop (SP) or CP.

Front 4

Approach to determining characterization of prop

Back 4

1. time of acquisition
2. source
3. ac/ns
4. presumptions

Front 5

When does marital ec community begin & end?

Back 5

begins at marriage & ends at one spouse's death or when H & W effect a permanent physical separation.

Front 6

When does marital ec community begin for domestic partners?

Back 6

registration

Front 7

Separation is

Back 7

actual physical separation & an intent not to resume the marital rel/ship.

Front 8

Wages earned before marriage but received during marriage are

Back 8

SP of earner unless he takes some ac/n to change char

Front 9

Wages earned during marriage but received after separation are

Back 9

CP

Front 10

Prop acquired during marriage characterized as spouse's SP:

Back 10

1. prop received by gift, bequest, devise or desent
2. rents, issues & profits of SP acquired before or during marriage
3. prop acquired in exchange for SP

Front 11

Proof prop acquired during marriage raises a presumption that it is

Back 11

CP; but presumption can be oversome by showing prop was acquired by gift or is the fruit of SP or by tracing back to SP sources

Front 12

Issue: characterization of personal injury recovery awards against 3rd party
depends on

Back 12

when cause of ac/n arose

Front 13

If cause of ac/n arose during marriage, the recovery award is

Back 13

CP

Front 14

If cause of ac/n arose after permanent separation, the award is

Back 14

injured spouse's SP but the injured spouse must reimburse the community or other spouse's SP for any expenses paid due to the injury.

Front 15

At divorce, personal injury damages will be awarded to

Back 15

the injured souse unless the interest of justice require otherwise.

Front 16

Personal injury recovery against other spouse always belongs

Back 16

to the injured spouse's SP

Front 17

How are retirement pensions characterized?

Back 17

CP (vested as well as unvested) to extend the right to benefits was earned during marriage.

Front 18

How do courts apportion SP & CP interests of a pension earned both during & after marriage?

Back 18

"time rule"

Front 19

What is the effect of death on pension interest?

Back 19

Former spouse's CP interest in pension survives past divorce & death of either spouse. (except fed ERISA may change rule)

Front 20

How might divorce court handle pensionable spouse eligible to retire but does not?

Back 20

May order private employer to pay the nonemployee spouse her share of benefits as though the worker had in fact retired. If public employee, the worker may be order to pay as if he had retired.

Front 21

How are disability pay & workers' comp characterized?

Back 21

To the extent they are intended to replace marital earnings, they are CP. If they are intended to replace SP post divorce earnings they are SP. Does not matter if the right to receive these benefits was earned during marriage.

Front 22

How is severance pay characterized?

Back 22

Depends on intent. When it is like a retirement persion, it is treated as CP (b/e it was earned during marriage). When it is meant to sustain worker until his next job, it is like disability pay & treated as SP (b/e it replaces postdivorce lost wages).

Front 23

How are stock options characterized?

Back 23

If they vest during marriage, CP. If awarded during marriage but exercisable after marriage ended, they are apportioned b/n CP & SP depending on whether the intent is compensation for past services, future services or both.

Front 24

How is goodwill characterized?

Back 24

To extent that goodwill is earned during marriage, CA treats is as CP.

Front 25

What 2 techniques are used to assess value of good will?

Back 25

1. market sales valuation
2. capitalization of past excess earnings

Front 26

How is education & training characterized?

Back 26

Ed or degree belongs to educated spouse. At divorce there is an equitable right of reimbursement to community if CP $ was used to pay for ed or repay a loan & the ed substantially increased the earning capacity of the educated spouse. Loans still outstanding are assigned soley to the educated spouse.

Front 27

What equitable defenses may educated spouse have to reimbursement duty to community?

Back 27

1. Community already substantially benefited (e.g. 10yrs+)
2. other spouse also got CP ed
3. need for spousal support is reduced b/e of ed

Front 28

How are whole life insurance proceeds characterized at death?

Back 28

treated as CP in proportion to the % of premiums paid by community.

Front 29

How are term life insurance proceeds characterized at death?

Back 29

Courts are split but better view is same as whole life but only for the period beyond the date of separation for wh CP $ were used to pay premium.

Front 30

If CP paid premiums but deceased spouse named some one else beneficiary,

Back 30

the named beneficiary receives the deceased spouse's 1/2 community interest & surviving spouse takes 1/2.

Front 31

How is a life insurance policy characterized at divorce?

Back 31

If policy has a cash value (whole life) the cash value is CP in proportion to premiums paid by community. Term insurance has no cash value. Consequently most courts now hold that term insurance has no value at divorce.

Front 32

What is gen presumption of CP?

Back 32

All prop acquired during marriage is presumed to be CP. A showing of possession during marriage may be sufficient to raise a CP presumption.

Front 33

When does gen presumption of CP not apply?

Back 33

at death when title held by decedent, and the marriage during wh prop was acquired terminated more than 4 yrs. prior.

Front 34

How may CP presumption be overcome? (5)

Back 34

1. statutory facts (i.e. gift, etc SP)
2. parties agreed that prop would not be CP
3. both spouses knowingly took title in another form other than CP (e.g. JT)
4. one spouse took title in a form that evidences a gift to the other spouse or
5. purchase $ traced to SP source.

Front 35

Form of title presumption

Back 35

The form of title taken creates rebuttable presumption that prop is in fact of the char stated in the title.

Front 36

If title to prop is taken as SP of one spouse, what else must be shown for form of title presumtion to hold--i.e. that prop is rebuttably the SP of the holder spouse?

Back 36

the other spouse must have knowledge & consented

Front 37

If one spouse took title to prop W/OUT the other spouse's knowledge & consent, what is the presumption?

Back 37

Here, form of title is immaterial; and CP presumption is not overcome.

Front 38

Burden of proof required to overcome the form of title presumption

Back 38

Must be clear & convincing evid of a communicated agreement b/n spouses that the ownership status is to be other than indicated in the title

Front 39

How is jointly title prop characterized at divorce or separation?

Back 39

A superseding statuory CP presumption attaches.

Front 40

How can the CP presumption of joint titled prop be rebutted?

Back 40

only by a writing executed by the parties (including a clear stmt in the deed) stating the joint title prop is SP.

Front 41

What happens to the form of title presumption when there is undue influence?

Back 41

The form of title presumption yields to undue influence presumption

Front 42

What duties do spouses owe ea other around bus or financial transactions?

Back 42

They have a confidential re/ship wh imposes on ea a duty of the highest good faith & fair dealing. They owe ea other fiduciary duties of care & loyalty, same as nonmarital bus partner. (See Partnerships #19-23)

Front 43

A presumption of undue influence occurs when

Back 43

one spouse (or registered domestic partner) acquires an unfair advantage over the other in a transac/n such as a transmutation.

Front 44

How can the presumption of undue influence be rebutted?

Back 44

If "disadvantaged" party contests the transac/n, the advantaged party has the burden of proving by a preponderance of the evid the transac/n was freely & vol consummated w/full knowledge of the effect of the transfer.

Front 45

Agreements that alter char of prop broadly include

Back 45

1. premarital agreements
2. transmutations--agreements during marriage

Front 46

Must a premarital agreement be in writing?

Back 46

Yes signed by both parties. SoF

Front 47

When may an oral premarital agreement be enforced?

Back 47

1. when the executory promise was fully executed
2. the promisor is estopped to assert the SoF (i.e. when the promisee has relied to her detriment on the oral premarital agreement)

Front 48

Are premarital agreements wh limit or waive prop rights enforceable?

Back 48

yes

Front 49

Are premarital agreements wh waive spousal support unenforceable?

Back 49

No, not per se

Front 50

What circumstances render premarital agreements unenforceable?

Back 50

1. Agreement promotes divorce.
2. Party did not understand what he was giving up &/or did not have enough time for diliberation.
3. Agreement was unconscionable when executed
4. Burdened party did not have adequate disclosure of the other party's wealth.

Front 51

Is a waiver of marital death rights contained in a valid premarital agreement enforceable?

Back 51

yes, if it satisfies either the Family Code or Probate Code requirements.

Front 52

If parties change the status of prop during marriage (e.g. from CP to SP or SP to CP) this ac/n is called

Back 52

transmutation

Front 53

Transmutation must be made by

Back 53

express declaration in writing & consented to by the spouse whose interest is adversely affected. Extrinsic evid is generally not permitted,

Front 54

What are the exceptions to the writing requirement for transmutions? (2)

Back 54

1. nonprobate beneficiary designations
2. gifts B/N spouses of items of personal nature that are not substantial in value (determined by $ circumstances of marriage).

Front 55

In divorce ac/n, is person bound by a description of char of prop that may appear in a will or inter vivos trust?

Back 55

no, absent an unambigous indication that transmutation was intended.

Front 56

In what forms may a married couple hold prop? (4)

Back 56

1. joint tenancy
2. tenancy in common
3. CP
4. CP w/ right of survivorship

Front 57

If married couple has joint tenancy title

Back 57

H & W ea own an undivided 1/2 interest (ea 1/2 interest is a SP interest) & the survivor automatically become the owner of the Dec's interest.

Front 58

If married couple has tenancy in common title

Back 58

ea possess equal proportional ownership interest & there is no right of survivorship

Front 59

If maried couple take title as CP

Back 59

ea spouse owns an undivided 1/2 interest & neither can partition the whole

Front 60

If married couple take title as CP w/ right of survivorship

Back 60

they own w/ all of the attributes of CP except at death of one, the Dec's 1/2 interest vests in the surviivng spouse just as in joint tenancy.

Front 61

Married woman's special presumption

Back 61

Former law: Before 1975 when written title was placed in married woman's name, it was presumptively the married woman's SP. Prop titled to W & another person (including H) created a tenancy in common. If married grantee, W took her 1/2 interest as SP & H took his 1/2 interest as CP. Thus W had 3/4 ownership.

Front 62

At divorce, all jointly held prop is presumed

Back 62

CP wh can be overcome only by collateral written agreement or stmt in title that prop is SP, not CP

Front 63

If joint titled prop is CP, at divorce the SP contributions to acquisition

Back 63

will be reimbursed to the SP contributor w/o interest or appreciation.

Front 64

If joint titled prop is CP, at death the SP contribtuions to acquisition

Back 64

are presumed to be a gift. This presumption can be overcome by proof the parties agreed the contributing spouse would maintain a SP interest.

Front 65

What is presumption of joint titled prop when ex-spouse dies b/n the divorce decree & division of prop?

Back 65

joint prop is presumptively CP

Front 66

With joint bank accounts, do jointly title prop presumptions apply?

Back 66

No

Front 67

What 2 important presumptions apply when tracing $ in a comingled account?

Back 67

1. Available $ presumed to be used for family expenses.
2. Absent evid of a reimbursement agreement, a gift is presumed when SP $ used to pay family expenses.

Front 68

What are the 2 permissible tracing methods?

Back 68

exhaustion
direct tracing

Front 69

In the exhaustion method of tracing

Back 69

the CP portion had been exhausted by payment of family expenses; since only $ left was SP, the asset must have been purchased w/ SP $.

Front 70

In the direct method of tracing,

Back 70

SP $ was available, and the proponent intended to use the SP $ to purchase SP asset.

Front 71

May SP proponent simply show total family expenses exceeded CP income to prove assets purchased are that spouse's SP?

Back 71

No. Recapitulative accounting not allowed.

Front 72

What is consequence when SP proponent fails to trace the SP $ put into a CP account?

Back 72

It will be treated as CP

Front 73

Contents of bank account held jointly by married persons are
presumed

Back 73

CP but this presumption may be overcome by tracing to one spouse's SP (unless express agreement that $ will be CP)

Front 74

Two methods courts have developed to apportion b/n SP & CP aspects of a bus

Back 74

Van Camp & Pereira accounting

Front 75

In the Van Camp accounting method,

Back 75

the mgr's services are valued at the going market salary. The amount of family expenses that were paid from bus earning are then subtracted. The remainder, if any, represents CP. The rest of the bus is SP.

Front 76

In the Pereira accounting method,

Back 76

SP consists of the mgr's SP capital + a fair return, (e,g 10% of principal X 10 yrs). The remainder is CP.

Front 77

Whether to use Van Camp or Pereira

Back 77

Pereira should generally be used when mgmt of spouse was primary cause of the growth or productivity of the separate bus. Van Camp should generally be used when the char of the separte bus is largely responsible for its growth or productivity.

Front 78

Example: H's SP bus= $100,000 at time of marriage which lasted 10 yrs. At divorce, bus worth $400,000. Show Van Camp accounting when char of bus was the primary cause of its growth.

Back 78

Value of H's services ($30,000 yr) $300,000
minus family expenses paid from bus ($20,000 yr) $200,000 = $100,000
Remaining $300,000 of bus value is H's SP

Front 79

Example: H's SP bus= $100,000 at time of marriage which lasted 10 yrs. At divorce, bus worth $400,000. Show Pereira accounting when H's mgmt was the primary cause of its growth.

Back 79

Reasonable rate of return (10% yr) $100,000 + original principal $100,000 = $200,000 wh H's SP interest. Remaining $200,000 of bus value is CP.

Front 80

If CP $ goes to paying off purchase price of SP

Back 80

then community establishes a % interest to the extent that community mortgage payments reduce the principal debt.

Front 81

When spouse uses CP $ used to impove his own SP

Back 81

no gift is presumed. The community is entitled to either reimbursement of the cost of the imporvement or the amount by wh the improvement increased the value of the realty--wh/ever is greater.

Front 82

When spouse uses CP to improve the other spouse's SP,

Back 82

the modern trend is to reimburse the community estate. Traditionally a gift was presumed.

Front 83

If couple purchases prop w/ H's SP$ + proceeds of a CP bank loan,

Back 83

the asset is apportionately divided b/n H's SP & CP.

Front 84

How to determine char of credit or purchase $ loan?

Back 84

Credit acquired by one spouse during marriage is presumptively community credit. To demonstrate that loan proceeds or credit purchases are SP, the borrowing spouse must demonstrate that the lender primarily relied on the borrower's SP in granting the loan or extending the credit.

Front 85

"Personal credit" of either spouse during marriage is

Back 85

CP insofar as it is based on earning capacity.

Front 86

What prop does divorce court have power to divide?

Back 86

All CP
Jointly titled SP at request of either party.
SP not jointly titled only at request of BOTH parties.

Front 87

What duty of disclosure to court do parties going through divorce have?

Back 87

Both parties must disclose all assets & liabilities in wh one or both have an interest wh includes a continuing duty to update.

Front 88

Deviation from in-kind division means

Back 88

court may award any CP asset to one party on such cond/ns as it deems proper to effect a substantially = division of CP. (i.e. home may be awarded to one spouse to avoid uprooting the couple's children.)

Front 89

What is possible result if one spouse misappropriates CP during divorce proceedings?
(i.e. violating fiduciary duty)

Back 89

The court may award or offset against the wrongdoer's 1/2 share of remaining prop

Front 90

What may occur if liabilities exceed assets at divorce?

Back 90

After taking all assets & liabilities into account, the court may fashion an un= division of liability, taking into considera/n the parties' relative ability to pay the debts.

Front 91

If one spouse has incurred educational debts, these are assigned to

Back 91

the recipient & excluded from = division of assets & liabilities.

Front 92

A tort liability incurred by a party not based on activity wh benefitted the community is assigned to

Back 92

the tortfeasor spouse, w/o offset.

Front 93

At divorce, separate debts incurred before marriage, after separation or not for benefit of the community are assigned to

Back 93

debtor spouse

Front 94

At divorce, a community estate personal injury recovery is awarded

Back 94

entirely to the injured spouse unless interests of justice require otherwise. In no event will the injured spouse receive less than 1/2.

Front 95

What are "interests of justice" when assigning a community estate personal injury recovery?

Back 95

ec hardship of the noninjured spouse.

Front 96

What is the time of valuation of assets & liabilities in a divorce?

Back 96

as near to the time of trial as possible except for a spouse managed bus in wh the primary asset is accounts receivable. Here, it should be valued at time of permanent separation rather than trial.

Front 97

Under what 2 statutory schemes may a property settlement at a divorce proceedings be set aside?

Back 97

1. Code of Civil Procedure Sec 473b
2. Relief provided by Family Code.

Front 98

Under Civil Procedure Sect 473B, a court may set aside a property division based on

Back 98

mistake, inadvertence, surprise or excusable neglect up to 6 mos. There is no time limit for setting aside prop divisions based on extrinsic fraud, extrinsic mistake or duress.

Front 99

Under CA Family Code, a court may set aside a property division based on

Back 99

1. actual fraud, mistake or perjury if brought w/in 1 yr. after complaining party knew or should have discovered
2. duress or motion based on mental incapacity must be brought w/in 2 yrs. after judgement.
3. based on failure to comply w/ disclosure requrements if brought w/in one yr. after complaining party knew or should have known.

Front 100

How can a 3rd party involved in litigation w/ one spouse challenge a CP distribution?

Back 100

through Uniform Fraudulent Transfer Act, 3rd party may be able to reach CP interest if marital settlement agreement involved a fraudulent transfer.

Front 101

Under CA CP law, what testimentary power does a spouse have over CP & SP?

Back 101

Married person may transer 1/2 of CP & all of SP by will. The surviving spouse owns the other 1/2 of CP.

Front 102

How is an unauthorized inter vivos gift of CP treated?

Back 102

One spouse may not make an inter vivos gift of CP w/o written consent of the other spouse. At death, it is treated as a valid testamentary transfer of the donor's 1/2 interest.

Front 103

How are the proceeds of a life insurance policy paid for w/ CP$ treated if deceased insured spouse made a testamentary transfer to a 3rd party beneficiary?

Back 103

Deceased spouse cannot make a testimentary transfer of more that 1/2 of the proceeds of a CP funded life insurance policy.

Front 104

Item theory of death distribution of CP means

Back 104

the surviving spouse is entitled to 1/2 of ea item of CP. Unless he consents, his CP claims are not satisfied by 1/2 of the aggregate CP.

Front 105

Survivor's duty to elect means

Back 105

a testator may put a clause in his will stating his surviving spouse must either elect to take under the will or assert CP rights. When there is no explect election clause, a surviving spouse may assert BOTH her CP rights & her rights under the will as long as this would not upset Dec's testamentary plan. The surviving spouse must elect b/n the will & her CP rights when Dec's will attempts to pass the survivor's 1/2 interest in CP. (See Wills #178-184)

Front 106

CP & SP passed by intestacy

Back 106

See Wills #5-29

Front 107

Quasi CP (QCP)

Back 107

is prop acquired by either spouse that would have been CP had the spouse been domiciled in CA at the time of acquisition.

Front 108

QCP retains is SP nature when parties

Back 108

become domiciled in CA

Front 109

QCP label become significant

Back 109

at divorce or death.

Front 110

At divorce, QCP

Back 110

is treated exactly as though it were CP.

Front 111

AT death, how is QCP treated?

Back 111

The survivor has 1/2 interest in Dec's QCP. Dec has no rights to the survivor's QCP.

Front 112

What if before death, Dec transfered his QCP interest to 3rd party w/o surviving spouse's consent for less than substantial consideration?

Back 112

The surviving spouse may compel the 3rd party to restore 1/2 of prop or its value to Dec's estate if Dec reserved the right to income, rights to survivorship or right to revoke, invade, consume, invade.

Front 113

For purposes of death only, how is prop treated which was acquired in another CP jurisd/n?

Back 113

CA CP, not QCP.

Front 114

During marriage, may a creditor reach one spouse's QCP to satisfy debt incurred by the other spouse?

Back 114

Yes, but this of /able constituttionality. W/ the exception of debt collection, QCP is still treated as the acquiring spouse's SP during marriage.

Front 115

At divorce, how will court manage division of real prop situated in another state (CP or QCP)?

Back 115

Divide all CP & QCP in such a way that it is not necessary to alter the nature of the interests held in the out of state realty.

Front 116

If it is not possible at divorce to divide out of state CP & QCP w/o altering its nature, the court may either

Back 116

1. require the parties to execute whatever conveyances are necessary to divide the out of state realty or
2. award to the party who would have benefited from the conveyance the $ value of her interest.

Front 117

At death, how will court manage division of real prop situated in another state (CP or QCP)?

Back 117

Out of state realty is normally probated in ancillary adm in the state in wh prop is located according to the laws of that jurisd/n. When a spouse owning such out of state realty exchanges it for personalty or for CA realty, the new prop is CP or QCP.

Front 118

How does CA probate treat realty owned by out of state Decs?

Back 118

CA applies the law of dec's domicile to disposition of his CA realty.

Front 119

What are requirements for lawful marriage in CA?

Back 119

legal capacity & performance of formal legal procedures--ceremony that is licensed or registered.

Front 120

Does CA recognize common law marriages?

Back 120

No but does recognize common law marriages if Ked in jursins that continue to recornize them.

Front 121

Does Ca recognize same sex marriage

Back 121

still undeceded. Statute barring it was declared unconstitutional, thus allowing same sex marriage for a time. Then Prop 8 again barred. That amendment was found unconsitutional under Con but stay granted pending appeal.

Front 122

Same sex couple lawfully maried before effective date of Prop 8

Back 122

may claim CP rights as spouses. Other same sex couples may claim the same rights if they are register DPs.

Front 123

Putative spouse

Back 123

is not lawfully married but has a good faith blief based on objectively reasonable grounds that he or she is lawfully married.

Front 124

Does putative spouse status extend to putative DP?

Back 124

Yes

Front 125

What prop rights does a putative spouse or DP have?

Back 125

almost the same as a lawful spouse (i.e. in CP or QCP & in partner's SP). Private Kual benefits may be limited to lawfully married spouses.

Front 126

Can the non-good-faith spouse make a claim against the putative spouse for QMP acquired?

Back 126

Not clear

Front 127

If claim of putative spouse could possible fail due to knowledge marriage was invalid,

Back 127

the claim may still prevail on the basis of estoppel if the other spouse also knew the marriage was invalid but continued to enjoy the benefits of cohabitation.

Front 128

What have courts done when a Dec leaves both a lawful & putative spouse?

Back 128

divide the estate b/n the 2

Front 129

To unmarried co-habitants,
what principles do CA courts apply?

Back 129

K

Front 130

If no express K b/n co-habitants, a K may be implied by

Back 130

the beh of the parties & may employ doctrine of quantum meruit & equitable remedies such as constructive trust & resulting trust (See K #294-305; Trusts #130, 140-47)

Front 131

Re: claims against 3rd parties & govt, what rights do co-habitants have for asserting rights that flow from marital status?

Back 131

No rights

Front 132

How do courts view co-habitation if couple later marries?

Back 132

K prinicples still apply to prop acquired during co-habitation; & if they later divorce, only prop acquired during marriage is distributed according to CP rules.

Front 133

Is a K b/n unmarried co-habitants explicitly founded on consideration of sexual services enforceable?

Back 133

No

Front 134

Re: management & control, ea spouse has _______ management & control of CP

Back 134

equal. Ea spouse acting alone may buy, sell, spend or encumber all of CP

Front 135

Re: testimentary control, ea sponse has control over ______of CP.

Back 135

his or her 1/2 interest

Front 136

Real prop exception to rule that ea spouse has equal management & control of CP.

Back 136

If CP real prop is sold, conveyed or leased for more than one yr, both spouses must join in executing the instrument.

Front 137

When real prop CP is titled in one spouse's name only & that spouse misrepresents his marital status to an innocent transferee, does the nonconsenting spouse have any recourse?

Back 137

Yes, the nonconsenting spouse has one yr to bring ac/n to void the transfer. The presumption that transfer to a BFP is valid can be overcome by demonstrating that the nonconsenting spouse did not consent to nor participate in transfer. She may then void the conveyance & return the transferee's $.

Front 138

Can a nonconsenting spouse do anything about a security interest in CP granted to a creditor by the other spouse?

Back 138

Yes, except for family law attorney's real prop lien, nonconsenting spouse may entirely void such a security interest on CP. (note however, the debt underlying remains intact.)

Front 139

Personal belongings exception to rule that ea spouse has equal mgmt & control of CP

Back 139

CP households furnishings or clothing of a spouse or minor children may not be transferred w/o written consent of the other spouse. onconsenting spouse may void such a transfer in its entirety during or after the marriage & need NOT return the transferee's $.

Front 140

Bus exception to rule that ea spouse has equal mgmt & control of CP

Back 140

The spouse operating CP bus has PRIMARY (not sole) mgmt & control. He may act alone in all trans/ns but must give prior written notice to the other spouse of any sale, lease or exchange of all of the bus personal prop. If not, nonmanaging spouse has a remedy only if her 1/2 interest has been substantially impaired. Nonmanaging spouse may not void the transfer.

Front 141

Bank account exception to rule that ea spouse has equal mgmt & control of CP

Back 141

Bank account in the name of a married person is hheld for the exclusive benefit of that person & is free from control or lien of any other person except a creditor. Bank is held harmless against claims by depositor's spouse.

Front 142

What limits are placed on a spouse's power to make gifts of CP?

Back 142

Gift of CP requires written consent of the other spouse. The nondonor spouse may ratify the gift through a separate writing. During donor's life, nonconsenting spouse may revoke the gift in its entirety. Once the donor dies, the conconsenting spouse or her estate may recover her 1/2 interest in the unauthorized gift against the donee or donor's estate.

Front 143

Each sp has fiduciary duty to other which means

Back 143

acting in the highest good faith & fair dealing w/ respect to the other in the mgmt & control of CP. (#42 supra)

Front 144

Duties of managing spouse include

Back 144

1. reasonable standard of care of CP.
2. duty to account
3. duty to secure consent.

Front 145

Would deliberate dissipation or destruction of CP by managing spouse be actionable by other spouse?

Back 145

Yes

Front 146

Would gross neg or reckless conduct by managing spouse be actionable by other spouse?

Back 146

Yes

Front 147

Would failure to adhere to prudent investor standard by managing spouse be actionable by other spouse?

Back 147

No

Front 148

What duty to account does managing spouse have to other spouse?

Back 148

provide any info concerning the CP as is reasonably necessary for the exercise of the spouse's rights.

Front 149

Managing spouse has duty to secure consent of nonmanaging spouse before

Back 149

1. making a gift of CP
2. conveying or encurmbering personal CP used in family home including clothing, selling leasing or otherwise disposing of substantially all of the personal prop used in CP bus
3. conveying, encumbering or leasing real CP.

Front 150

Nonmanaging spouse has a claim against the managing spouse if

Back 150

there is a breach of fiduciary duty that results in substantial impairment of the nonmanager's interest

Front 151

What is the SoL for breach of duty ac/ns by nonmanaging spouse against the othe?

Back 151

3 yrs after actual knowledge. No limitation if brought in connection w/ divorce or at spouse's death.

Front 152

May a creditor reach any prop over wh the debtor has mgmt & control?

Back 152

yes

Front 153

For purpose of creditor's rights, how is QCP treated?

Back 153

like CP

Front 154

When is a K debt incurred?

Back 154

at time K made

Front 155

When is a tort debt incurred?

Back 155

at the time tort occurs

Front 156

How are spouse's child & spousal support obligations from a prior marriage treated?

Back 156

as debts incurred before marriage

Front 157

For a debt a spouse incurred before or during marriage, what prop is liable?

Back 157

All CP & debtor's SP (not other spouse's SP). CP earning of the nondebtor spouse are not liable for the debtor's premarital obligation only as long as those earning are held in a deposit account in wh the debotor spouse has no right of w/drawal.

Front 158

If one spouse incurs a debt for "necessaries" during marriage, is the other spouse personally liable?

Back 158

Yes. Absent a separation agreement, personal liabiltiy for necessaryies remains after the parties are spearated.

Front 159

When a married person joins in an encumbrance of CP to secure a debt incurred by a spouse, is the person's SP liable?

Back 159

No unless the person also incurred the debt.

Front 160

Rules about tort liability & spouses

Back 160

1. If liability of one spouse happened while spouse was performing activity for the community, liability should 1st be satisfied from CP, then SP of tortfeasor.
2. If liability is not based on an activity for the benefit of the community, liability shall 1st be satisfied from the SP of the tortfeasor & 2nd from CP.

Front 161

Rules re: creditor's rights at divorce

Back 161

1. Ea spouse is personally liable for all debts she incurred whether or not the court assigned the debt for payment by the other spouse. 2. If debt is assigned to one spouse by the divorce court, that spouse is personally liable.
3. If a debt was neither incurred by a person nor assigned by the court to that person, he is not personally liable & neirther the SP nor prop he received in division is subj to the debt.
when spouse's prop is applied to satisfuy a debt assigned to the other spouse, he has a right to reimbursement of the amount applied w/ interest from the other spouse.

Front 162

Rules re: creditor's rights at death when prop passes through probate adm

Back 162

Every debt of the Dec & surviving spouse must be 1st characterized as SP or CP. Then ea debt will be allocated accordingly against the SP or CP portions of Dec's estate & surviving spouse's prop.

Front 163

Rules re: creditor's rights at death when prop does not pass through probate

Back 163

Unless the survivor or Dec's estate affirmatively elects formal adm, the set aside law controls wh means the surviving spouse is personally liable for debts chargeable against CP or QCP & Dec's SP that pass to surviving spouse w/o adm.

Front 164

Statutory authority for one spouse to seek reimbursement against the other may occur in what sits?

Back 164

1. when CP is applied to satisfy child or spousal support claims arising out of a prior re/ship & debtor had CP to pay debt.
2. when one spouse's SP was applied to debts incurred by the other spouse for necessaries & debtor had SP or CP available &
3. when the order of satisfaction for tort debts was not followed.

Front 165

Conditions governing statutory reimbursement of spouse to another

Back 165

1. written waiver
2. SoL w/in 3 yrs or in divorce or death proceedings.

Front 166

Other case law & statutory rights relate to

Back 166

1. debts paid after separation but before trial
2. unauthorized gifts
3. when one spouse has used CP to improve SP
4. when one spouse has contributed SP to purchase or improvement of CP
5. educational expenses
6when one spouse has contributed prop to other spouse's SP.

Front 167

Gen principles of federal preemption in CP

Back 167

When state CP law conflicts w/ fed law, fed law prevails under the Supremacy Clause of Con--means asset in ? is exempt from CP law & owned entirely by person per fed law.

Front 168

Fed benefits wh may not be divided as CP (so characterized as SP) include

Back 168

VA disability benefits
future SocSec benefits
armed forces life ins
RR benefits.

Front 169

Issue: federal preemption & US savings bonds & CP

Back 169

Savings bond is owned by person in whose name registered. If registered in 2 names & other dies, the other is the absolute owner. One spouse may not use this preemption to defraud or betray the trust of the other spouse.

Front 170

Issue: federal preemption & copyrights & CP

Back 170

Fed law does not preempt CP division of copyright proceeds.

Front 171

ERISA (Employee Retirement I come Security Act) & fed preemption & CP

Back 171

The anti-assignment provision of ERISA preempt state law, so a predeceasing spouse cannot make a teatamentary transfer of her CP interest in an ERISA person of the surviving spouse. ERISA also preempts recognition of a CP interest in a spous'e IRA, employee stock ownership plan & proceeds from an employee life ins policy.

Front 172

Can CA state court correct any unfairness caused by federal preemption by awarding a spouse a greater share of CP?

Back 172

No

Front 173

Is civil service pension preempted by fed for purposes of CP?

Back 173

No subj to CP

Front 174

Are foreign services or military retirement benefits preempted by fed for purpose of CP?

Back 174

No subj to CP

Front 175

Does fed homestead law preempt CP trmt of homestead land acquired during marriage?

Back 175

Yes