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36 Cards in this Set
- Front
- Back
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community property issues checklist
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- does community property law APPLY?
SAPD: - what is the SOURCE of the item? - have any ACTIONS altered the character of the property? - statutory PRESUMPTIONS? - MANAGEMENT & CONTROL during marriage? Therefore, who gets it? |
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when does community property law apply?
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Requirements:
- legal marriage - domiciled in California |
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when it's not a legal marriage: issues
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- putative spouse: must be innocent! Counts as lawful spouse
- meretricious spouse: knows she's not the real one. Split in authority as to whether she gets anything - legal vs. putative: split it up |
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quasi community property
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acquired in non-community property state.
Divorce: don't treat like community property Death: treat like community property! |
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how to classify property: checklist
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- sources
- actions - presumptions |
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sources: SP or CP? (list)
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During marriage:
earnings: CP living separate: SP pension rights: CP (proportion) disability: depends what it was intended to replace. stock options: CP (proportion) severance pay: unclear! goodwill: CP (proportional) |
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presumptions
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- general presumption: all property acquired for consideration during marriage is presumed CP
- married woman's presumption: prior to 1975 it's SP! - 3rd party TIC presumption: wife holds her share as SP - conveyance to H&W: special presumption of CP - jointly held property: CP |
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divorce: disposition
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Equal Division Rule
CP and QCP shall be equally divided unless: - mutual agreement - deliberate misappropriation - personal injury damages - educational loans & debts |
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death: disposition
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intestate: survivor gets 1/2 CP and portion of SP
testate: SP can be given to anyone. Spouse gets 1/2 CP Widow can elect to take UNDER or AGAINST will! |
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how to write answer:
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- identify jurisdiction (CP state?)
- rule - factors |
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how to organize
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- organize by item
- item-related facts chronological order - apply your approach |
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quasi-marital property
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Acquisition with putative spouse. Need GOOD FAITH belief. Treat like CP.
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common law marriage
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Not in California! If you knew it wasn't legit, you knew it wasn't legit!
BUT if you enter into common law marriage in a state that allows it and then move to CA, CA will recognize as valid marriage. |
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Anti-Lucas Legislation
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ANY joint acquisition after 1987 presumed CP! Need written agreement to show SP interest!
When it applies: - Divorce: YES - Death: YES - Bank accounts: NO |
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Value of degree
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After 10 years: REBUTTABLE presumption that community has been reimbursed
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Van Camp vs. Pereira
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Pereira: value increased because of labor (community has an interest in the labor!).
Van Camp: value increased on its own. |
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prenuptial agreements: requirements
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- be in writing
- not PROMOTE divorce - not be unconscionable - chance to read - chance to get legal advice |
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Changes in property status (SP/CP) DURING marriage: oral agreement ok?
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"transmutations"
Before 1985: oral ok After 1985: oral not enough! |
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interspousal gifts
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No writing required! Gift becomes SP!
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gifts of CP to 3rd party
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Need consent of both spouses! Voidable!!!
Before donor dies: entire gift can be set aside After donor dies: 1/2 gift can be set aside |
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When there's both a "real" (legal) spouse and a putative spouse, who gets it?
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They split it.
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SP or CP?
earnings |
CP
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SP or CP?
living separate |
SP
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SP or CP?
pension rights |
CP (proportion)
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SP or CP?
disability |
depends what it was intended to replace.
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SP or CP?
stock options |
CP (proportion)
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SP or CP?
severance pay |
unclear!
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SP or CP?
goodwill |
CP (proportional)
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general presumption: when is it CP?
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all property acquired for consideration during marriage is presumed CP
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married woman's presumption
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prior to 1975 it's SP!
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One spouse holds property with third party as TIC: CP or SP?
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wife holds her share as SP
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conveyance to H&W
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special presumption of CP
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jointly held property
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CP
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death: disposition
intestate |
survivor gets 1/2 CP and portion of SP
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death: disposition
testate |
SP can be given to anyone. Spouse gets 1/2 CP
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Property conveyance to one spouse: common property?
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No
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