Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
161 Cards in this Set
- Front
- Back
|
what are threshold ?s
|
marital status and domicile
|
|
|
what should you say at start of every CP essay -
|
(1) P acquired during Marriage is presumed CP (2) before or after is SP of acquiring spouse (3) acquired by gift or inheritance at any time is SP of acquiring spouse
|
|
|
3 step approach for CP
|
threshold ?s, characterization of P (SAP), dispute resolution
|
|
|
what is SAP in characterization
|
source, actions, presumptions
|
|
|
types of P
|
h's SP, CP (Quasi,True,QCP), W's SP
|
|
|
3 areas of dispute resolution
|
creditor's rights, 3rd P transferees, between spouses
|
|
|
mariiage status? 2 types
|
legal or not legal
|
|
|
marital status - legal how
|
M in CA M elsewhere
|
|
|
M status not legal how?
|
putative QMP, meretrcious
|
|
|
M domicile not CA
|
QCP
|
|
|
COP - overview approach SAP
|
source , actions, presumptions
|
|
|
COP - attributes - SP
|
exclusive rights of mgnt control, divorce all SP to S, death S can will all SP away
|
|
|
COP - attributes -CP
|
MGT - must be managed by both, divorce substantially equal division, detah right to will 1/2 of CP
|
|
|
3 issues in COP for source
|
manner and time of AQ, tracing , and federal law
|
|
|
cop source timeline
|
Before M | During M | After M
|
|
|
manner and time of AQ
|
beore M | During M | After M
|
|
|
gifts devisee, inheritances SP or CP
|
SP anytime except a joint gift - aise ? could be SP of each spouse
|
|
|
COP - AQ straddles time lineline - what is key
|
when right to receive P is perfected determines CP or SP
|
|
|
COP - loan before M paid off in marriage - key
|
intent of lender or creditor
|
|
|
M of Moore - Key
|
pro rata ownership
|
|
|
3 issues around tracing
|
change in form, proceeds, rent etc, credit loans
|
|
|
COP - separation
|
one spouse has intent to separate and communicates to other spouse
|
|
|
COP - separation - mistress
|
did the M couple hold them selves out as married? bring laundry home?
|
|
|
COP - employment income
|
time skill and merits contribute to CP - you re working for C - pension - profit sharing etc
|
|
|
COP - employment income - severance pay
|
what is severance pay intended t replace? earnings after sep or divorce is SP
|
|
|
COP - employment income - stock options exercised after M
|
allocate using time rule just like pensions
|
|
|
COP - self-employment income
|
CP - generally - consider Pereira , Van Camp
|
|
|
COP - source - good will
|
CP if earned during marriage - divides a $ amount
|
|
|
COP - source - education degrees and licenses
|
courts favor C but the C does not earn an interest if spouse gets degree - but right to reimbursement
|
|
|
COP source - offset for degree
|
reduced necessity for support
|
|
|
COP degree time line for C
|
> 10 years C has got substantial benefit < 10 years no Substantial benefit
|
|
|
PI damages when SP
|
other spouse is TF (first insurance, then SP , finally CP), 3rd p TF depends on inception of right
|
|
|
PI damages when SP lost earnings ?
|
non injured spouse may get
|
|
|
PI damages when SP after marriage
|
SP \but may have right to reimbursement
|
|
|
PI damages when CP - during M
|
3rd P TF is CP if right of inception is during M
|
|
|
PI damages when CP - during M - special divorce rule
|
on divorce all PI will be awarded to injured S - 2 exceptions - interests of justice allow up to 1/2 to non-injured spouse and commingling with CP loses special character so it is CP
|
|
|
PI damages when CP - during M - tracing for commingled PI
|
tracing should be discussed and maybe allowed
|
|
|
Source - tracing 3 issues
|
chang in form, proceeds, credit
|
|
|
source - change in form change character
|
no
|
|
|
COP - source - proceeds
|
what ever bubbles up from productive P takes same character as underlying P
|
|
|
COP - source - proceeds - mixed asset
|
direct proportion to underlying P
|
|
|
COP - source - loan -
|
look to intent of lender at time loan extended
|
|
|
COP - source - loan - talk about facts - intent of lender
|
whose name on doc, collateral SP or CP, assets of AQ S SP or CP?
|
|
|
COP - source - loan - subsequent actions
|
actually paid off with other P - may change Character
|
|
|
COP - source - federal law - con law - substantially interfere with state scheme?
|
supremacy clause - when can CA court divide asset if federal benefit - discuss preemption for railroad and Military CP, SP= VA Dis, SS, Savings bonds, Erisa - remeber no setoffs here
|
|
|
set offs to make up for VA, SS etc SP
|
only under fraud
|
|
|
Boggs ERISA - federal regulation of private sector pensions
|
prohibits transfer of this benefit at death - SP but on divorce it can be divided as CP
|
|
|
COP - ACtions - 3 issues
|
commingling, value enhanced, transmutation
|
|
|
COP- actions- commingling
|
presumed to be CP - direct tracing with records or exhaustion for family expense to rebut that presumption - characterise both the cash and the P bought with cash
|
|
|
COP- actions- commingling - direct tracing
|
use records like deposits etc
|
|
|
COP- actions- commingling - exhaustion family expense
|
CP was exhausted before purchase
|
|
|
COP- actions- commingling - insurance if dead
|
if dead benefit divide in proportion of premium according how premiums were paid either SP or CP
|
|
|
COP- actions- commingling - insurance if not dead - value of policy - whole life
|
whole life = present value then divide by how premiums were paid
|
|
|
COP- actions- commingling - insurance if not dead - value of policy - term life
|
split - no value nothing to divide and other courts divide based on a presumed value
|
|
|
COP- actions- value enhanced - SP biz - two methods to employ
|
Perreira and Van Camp
|
|
|
COP- actions- value enhanced - SP biz- Pereira-
|
used when effort of spouse is prime mover in business, reas rate of return to SP - tends to favor CP
|
|
|
COP- actions- value enhanced - SP biz- Van Camp
|
use when original SP investment is prime mover in biz - reas value of services as CP - first define what is CP then the rest is SP - tends to favor SP
|
|
|
COP- actions- value enhanced - SP biz- Pereira
|
original SP investment + reas rate of return = SP to SP spouse, rest is CP - favors CP use when labor is primary reason for increase in value
|
|
|
COP- actions- value enhanced - SP biz- Van Camp
|
reasonable value of spouse's services - salary received = CP, the rest is SP of owner spouse - tends to favor SP, employ when SP asset is primary reason for increase in value
|
|
|
mixed asset - reverse Pereira and reverse Van camp
|
Pereira = orig CP + reas rate of return is CP ans rest is SP -van camp = as reasonable value of services -salary received as SP and rest CP
|
|
|
what circumstances invoke reverse Pereira and revers Van camp - july 94
|
Biz starts with CP then gets smoe SP after divorce
|
|
|
COP - Actions - RP - AQ mortgage - SP1 on CP
|
reimbursement for principal
|
|
|
COP - Actions - RP - AQ mortgage - CP on SP 1 Marriage of Moore
|
pro rata interest
|
|
|
COP - Actions - RP - AQ mortgage - SP1 on SP 2
|
gift or reimbursement
|
|
|
COP - Actions - RP - improvement - SP1 on CP
|
reimbursement for principal
|
|
|
COP - Actions - RP - improvement - CP on SP1
|
reimbursement for value added
|
|
|
COP - Actions - RP - improvement - SP1 on SP2
|
gift or reimbursement
|
|
|
mortgage SP1 on CP reimbursement for taxes etc?
|
no principal only
|
|
|
mortgage CP on SP1 C share in increased value t or F
|
True
|
|
|
SP1 on SP2 mortgage Lucas
|
gift or reimbursement
|
|
|
RP improvement - CP on SP1? traditional and modern
|
trad reimbursement - modern reimbursement for value added
|
|
|
COP- Actions - define transmutation generally
|
agreement to transfer P in a marriage
|
|
|
COP - actions - transmutataion -
during marriage is consideration required? |
no
|
|
|
OP - actions - transmutation - during M - old law pre 1985 - writing
|
no - oral agreement or agreement implied through contract - fully executed
|
|
|
OP - actions - transmutation - during M - old law pre 1985 - writing - what is fully executed
|
spouses act in conformity with the agreement
|
|
|
OP - actions - transmutation - during M - new law post 1985 - writing 3 issues
|
signed writing, gifts, and no statements in will on divorce
|
|
|
OP - actions - transmutation - during M - new law post 1985 - signed writing require?
|
yes except - if P is gift - insubstantial value AND used primarily by recipient spouse AND tangible person item like jewelry
|
|
|
OP - actions - transmutation - during M - new law post 1985 - 3 requirements for gift exception
|
insubstantial value AND used primarily by recipient spouse AND tangible personal item like clothing or jewelry
|
|
|
OP - actions - transmutation - during M - new law post 1985 - statements in a will an effective writing for post 1985?
|
no
|
|
|
OP - actions - transmutation - made before M - become effective on marriage - old law and new law
|
old no writing new (1986) writing required
|
|
|
OP - actions - transmutation - made before M - become effective on marriage - reliance?
|
could be detrimental relaince
|
|
|
COP presumptions 3 issues
|
basic presumptions, for of title, bank accts jt form
|
|
|
COP presumptions - basic presumptions general rule
|
all P AQ during M is presumed to be CP, all P in possession is presumed
|
|
|
COP presumptions - basic presumptions rebuttal
|
tracing or agreement -transmutation
|
|
|
COP presumptions - basic presumptions rebuttal by agreement oral ok
|
yes so long as both parties acted in conformity with the terms of oral agreement
|
|
|
COP presumptions - JT presumptions divorce 3 issues
|
effect, rebuttal, retroactive
|
|
|
COP presumptions - JT presumptions at divorce - what is presumed
|
P is presumed to be held as the title is taken - one spouse to another may be a gift
|
|
|
COP presumptions - JT presumptions at divorce - what is presumed if indication parties are married in title
|
presume to be CP unless a contrary intent is on face of the deed Mary and joe, a M couple, as joint tenants
|
|
|
COP presumptions - JT presumptions at divorce - what is presumed if indication parties are married in title - tracing to rebut character
|
no
|
|
|
COP presumptions - JT presumptions at divorce - what is presumed if indication parties are married in title rebuttable by agreement?
|
yes after 85 in writing
|
|
|
COP presumptions - Joint form presumption
|
P held in joint form , other than bank accts , is presumed CP except on death
|
|
|
COP presumptions - Joint form presumption effective at death? divorce?
|
only on death
|
|
|
COP presumptions - Joint form presumption define
|
P held in joint form is presumed CP except bank accts
|
|
|
COP presumptions - Joint form presumption joint tenants
|
presumed CP
|
|
|
COP presumptions - Joint form presumption tracing to rebut presumption of CP
|
no
|
|
|
COP presumptions - Joint form presumption agreement to rebut presumption of CP
|
yes such as in deed "each retaining their SP interest"
|
|
|
COP presumptions - Joint form presumption interfering with P rights time periods
|
pre 1984 lucas SP presumed gift unless contrary agreement, 84-87 CP presumption only applied to P AQ as JT, after 87 full JT joint form any joint form or JT triggers joint form presumption
|
|
|
COP presumptions - pre 1975 M woman effect
|
prior to 75 husband only controlled and mgt of CP except wife's earnings, when M woam AQ P before 75 by instru in writing presumed woman's SP
|
|
|
COP presumptions - pre 1975 M woman rebuttal
|
can be rebutted by tracing to CP and showing H did not control or mgt of CP source then CP
|
|
|
COP presumptions - pre 1975 M woman presumption rebuttal - BFP
|
cannot rebut BFP
|
|
|
COP presumptions - bank accts effect
|
if held in joint form presumed CP - tracing fully allowed
|
|
|
CP - presumptions - bank accts - tracing allowed
|
yes fully allowed
|
|
|
presumptions bank accts tracing
|
if traced to SP source then SP
|
|
|
COP - presumptions - pre 75 M woman - 3rd p BFP
|
if title presumed her SP - husband cannot rebut - sale is conclusive
|
|
|
COP - dispute resolution - 3 fights
|
creditor's rights, 3rd p transferees, between spouses
|
|
|
COP - dispute resolution - what P liable Before M during M and after M - debtor's SP
|
b yes, d yes, after yes
|
|
|
COP - dispute resolution - what P liable Before M - CP & QCP
|
yes , but (1) earning of non debtor spouse are not L so long as (a) not commingled (b) debtor S has no right to withdraw (2) right to reimb for spousal child support if S had SP available and did not use it
|
|
|
Dispute resolution - creditor's rights - During Marriage - CP & QCP
|
Yes
|
|
|
Dispute resolution - creditor's rights - During Marriage - CP & QCP - contract
|
key date is date contract made
|
|
|
Dispute resolution - creditor's rights - During Marriage - CP & QCP - tort - tort on 3rd p
|
tort on 3rd p - was spouse engaged in activities for benefit of C? then yes Cp exhausts then SP of TF
|
|
|
Dispute resolution - creditor's rights - During Marriage - CP & QCP - tort - 3rd P not benefit C
|
off to see mistress- SP the CP
|
|
|
Dispute resolution - creditor's rights - During Marriage - CP & QCP - tort on other spouse
|
insurance, then SP then CP
|
|
|
Dispute resolution - creditor's rights - after Marriage
|
court assigns -
|
|
|
Dispute resolution - creditor's rights - after Marriage - educational loans
|
go with educated spouse
|
|
|
Dispute resolution - creditor's rights - after Marriage - death
|
probate court assigns
|
|
|
Dispute resolution - creditor's rights - before Marriage - non debtor's SP
|
no
|
|
|
Dispute resolution - creditor's rights - during Marriage - non debtor's SP
|
no but (1) if living together non debtor liable for debtor's necessities(2)if living separate same rule applies unless SA does not provide for support
|
|
|
Dispute resolution - creditor's rights - after Marriage - non debtor's SP
|
no
|
|
|
dispute resolution - 3rd p transferees - 2 main issues
|
gift or sale
|
|
|
dispute resolution - 3rd p transferees gift general rule
|
no gifts of CP w/o written consent of other spouse
|
|
|
dispute resolution - 3rd p transferees gift remedy for gift absent consent
|
against 3p Living gets whole thing - dead had a right to will 1/2 so can only get 1/2 back
|
|
|
dispute resolution - 3rd p transferees sale general rule PP
|
either spouse can sell PP w/o consent of other spouse
|
|
|
dispute resolution - 3rd p transferees gift exceptions to general rule
|
household items or business interests
|
|
|
dispute resolution - sale RP general rule
|
neither spouse can sell RP absent written consent of other spouse
|
|
|
dispute resolution - 3rd p transferees sale exceptions to general rule RP
|
intraspouse or involuntary transactions
|
|
|
dispute resolution - 3rd p transferees sale remedy
|
3rd p spouse alive all RP, Spouse dead 1/2 RP , BFP is RP is in name of only 1 spouse and BFP no aware of M rebuttable presumption of valid transfer
|
|
|
dispute resolution - between spouses 4 areas of concern
|
control mgt , division at S or Divorce, death, pension benefits
|
|
|
dispute resolution - between spouses - control/ mgt during M - general rule
|
highest duty of GF and fair dealing - like trustee - records assets debts
|
|
|
dispute resolution - between spouses - control/ mgt during M - general rule - remedies
|
order accting, reform title , interest in asset etc
|
|
|
dispute resolution - between spouses - division at S or divorce jurisdiction
|
over assets and liabilities- attempt fair division
|
|
|
dispute resolution - between spouses - division at S or divorce jurisdiction sale of home
|
court may defer sale til kids mature
|
|
|
dispute resolution - between spouses - division at S or divorce agreement
|
parties can agree in writing or oral stip in court
|
|
|
dispute resolution - between spouses - division at S or divorce fraud, mistake, breach of fid duty
|
court may reform its order in these cass
|
|
|
dispute resolution - between spouses - division at S or divorce death - testate and intestate
|
right to will all SP and 1/2 CP
intestate then all CP to surviving spouse - part and possibly all SP depending on Family tree |
|
|
dispute resolution - between spouses - division at pension benefits
|
depends on when right to get benefits earned - look to time line BM DM AM
|
|
|
dispute resolution - between spouses - division at S or divorce pension benefits matured
|
if right to receive under time rule then apportion according to time line
|
|
|
dispute resolution - between spouses - division at S or divorce pension benefits vested/non vested
|
court may reserve judgment or do immediate division
|
|
|
dispute resolution - between spouses - division at S or death pension benefits - non earner dies 1st - old and new
|
old nothing to non earner
new spouse get full CP share in retirement plan to non earner |
|
|
dispute resolution - between spouses - division at S or death pension benefits - earner dies 1st - old and new
|
old nothing
new gets the benefits to extent it is CP - look for preemption in ERISA |
|
|
dispute resolution - between spouses - division at S or disability benefits - wage replacement
|
during M CP and After M SP of receiving spouse
|
|
|
dispute resolution - between spouses - division at S or disability benefits replace retirement
|
during M CP after SP
|
|
|
threshold questions marital status not legal putatitve
|
or both parties beleive in GF that they are legally M but some mistake of law or fact unknown to either or both denies legal sanction - innocent parties are putative
|
|
|
status not legal putatitve - dissolution/termination - previous legal M not terminated
|
1/2 and 1/2 to innocent spouses
|
|
|
threshold questions marital status not legal putatitve - P type
|
QMP quasi marital P
|
|
|
threshold questions marital status not legal putatitve - dissolution/termination
|
divide just like regular divorce
|
|
|
threshold questions marital status not legal putatitve - dissolution/termination - previous legal M terminated time line
|
M a X b D X is putative M if old M is over at X then A is CP and B is QMP of putative M
|
|
|
threshold questions marital status not legal putatitve - death - testate
|
partner can will away all SP 1/2 CP and 1/2 QMP
|
|
|
threshold questions marital status not legal putatitve - death - not testate
|
1/2 to legal wife 1/2 to putative
|
|
|
meretricious relationship
|
two people living together knowing hey are not married
|
|
|
meretricious relationship - property rights
|
none on QMP - any rights spin out of K through express agreement or agreement through conduct
|
|
|
meretricious relationship - consideration and remedy on breach
|
required under Marvin - resulting trusts constructive trusts
|
|
|
marital domicile P type if outside CA
|
QCP - quasi CP
|
|
|
QCP DM
|
retains SP character
|
|
|
QCP at S or divorce
|
treated like CP
|
|
|
QCP at death
|
Survivor gets 1/2 except RP outside CA - retains SP character
|
|
|
QCP dispute resolution creditors
|
lumped in with CP
|
|
|
QCP dispute resolution 3rd P transferees
|
DM owner Spouse can transfer as SP,
|
|
|
QCP dispute resolution spouses DM
|
owner spouse has exlcusive control SP
|
|
|
QCP dispute resolution spouses S divorce
|
like CP
|
|
|
QCP dispute resolution spouses death owner spouse
|
ower dies 1st like CP decedent can will 1/2 of QCP
|
|
|
QCP dispute resolution spouses death non owner spouse
|
all SP of owner spouse
|
