Community Property

Front 1

Separate Property

Back 1

- Property owned by either spouse before marriage
- Property acquired during marriage by gift, will, or inheritance
- Property acquired during marriage with expenditure of separate funds (“source” rule – separate ownership established by tracing)
- The rents, issue, and profits, thereof – the income and capital gain from separate property

Front 2

Termination of Economic Community (test)

Back 2

1. Permanent physical separation
2. Intent not to resume marital relations

Front 3

Split on Divorce

Back 3

50/50

Front 4

Split on Divorce - exceptions

Back 4

1. Family residence
2. Shares in closely held corp.
3. Pensions

Front 5

Gift of CP

Back 5

Only with other's written consent; else, gift is restored to the community

Front 6

Prenups - requirements

Back 6

1. In writing
2. Signed by both parties

Front 7

Prenups - defenses

Back 7

1. Not signed voluntarily
- Ind. legal counsel
- 7 days
- fully informed
2. Unconscionable
- no fair disclosure
- no adeq. knowledge of other party's financials

Front 8

Marital Agreements - pre-1985 (oral?)

Back 8

Oral mutations were permitted

Front 9

Marital Agreements - post-1985 (requirements)

Back 9

1. In writing
2. Singed by spouse whose interest adversely affected
3. Expressly states that a change in ownership is being made

Front 10

Married Women's Special Presumptions (effect of taking title pre-1975) - Rule

Back 10

When CP used to take written title in a married women's name (and didn't indicate CP or JT), then property is presumptively wife's SP

Front 11

Married Women's Special presumption - 3 Situations

Back 11

1. Title taken in W's name alone
2. Title in name of W and H before 1975 but not taken in JT or has "Husband and Wife"
3. Title in name of Wife and a 3rd party

Front 12

Lucas - presumptions of taking title in "joint and equal" form

Back 12

Held: Taking TILE in JOINT AND EQUAL form is inconsistent with preservation of a separate interest; SP contributor is presumed to have made gift to community

Front 13

Lucas - on death

Back 13

Gift presumption remains
- So no claim for reimbursement

Front 14

Lucas - on divorce (anti-Lucas)

Back 14

Reimbursement - for DIP
- Downpayment
- Improvements
- Principal

Front 15

Installment Purchases before Marriage (also with life insurance)

Back 15

Pro rata (by principal debt reduction)

Front 16

H uses CP to improve own SP

Back 16

Community has reimbursement claim for greater of:
1. Cost of improvement, or
2. Enhanced value

Front 17

H uses CP to improve other spouse's SP

Back 17

Split of authority
- No reimbursement b/c of gift presumption
- Community claim for reimbursement

Front 18

Comingled bank accounts - B/P

Back 18

Rule - burden of proof is on H to show each asset was acquired by separate funds

Front 19

Comingled bank accounts - ways of satisfying B/P

Back 19

1. Exhausation
2. Direct tracing

Front 20

Pereira Method

Back 20

Personal Skills and Efforts
- Technique - Pay interest on SP; rest is CP

Front 21

Van Camp

Back 21

Value Community Labor

CP = value of spouse's service at market rates - family expenses from community funds
- Balance = SP

Front 22

Pensions

Back 22

Pro Rata =

Years of Service While Married
-----------------------
Total Years of Employment to Retirement

Front 23

Pensions - disability?

Back 23

Considered to be wage replacement

Front 24

Pensions - severence pay?

Back 24

Argue both ways

Front 25

Stock Options

Back 25

Pro rata =
Years from data option awarded to day economic community ended/
----------------------------
Years from date option awarded to day option becomes exercisable

Front 26

Professional Good Will

Back 26

Def - qualities that generate income beyond labor and reasonable return on cap.

Valuation - expert witness testimony or capitalization of excess earnings attributed to good will

Front 27

Educational Expenses

Back 27

Professaion degrees are NOT CP
- Reimbursemensts - community is entited to costs if education enhanced earning capacity

Front 28

Education Expenses - reimbursement Defenses

Back 28

1. Community has already benefited
2. Other spouse has received a CP-funded education

Front 29

Tort Recovery

Back 29

Spouse is tortfeasor - SP

3rd party is tortfeasor - CP
- On divorce - SP to injured spouse
- On death - CP

Front 30

Tort Liablity

Back 30

Rule - CP subject to liablity of either spouse

Priorities
- Act benefiting community - CP, then SP
- Not benefiting - SP, then CP

Front 31

Management Powers

Back 31

Each spouse has equal management and control over all CP

Front 32

Conveyance of Real Property

Back 32

Joinder of both spouses required
- SoL - 1 year to recover if one spouse conveyed
- BFP - loses to community

Front 33

Debt incurred before Marriage

Back 33

CP can be reached
- Exception - earnings of nondebtor spouse held in separate account, not co-mingled

Front 34

Medical Bill Debts

Back 34

Other spouse's SP CAN be reached
- But can have reimbursement
- Separation - STILL reach (as long as economic community still going)

Front 35

Quasi-CP - definition

Back 35

If property acquired in another state that would have been considered CP if acquired in CA

Front 36

QuasiCP - on divorce

Back 36

same as CP
- Situs rule - same for real property in another state

Front 37

QuasiCP - on death

Back 37

Tangible prop - same as CP
Real Prop - foreign state's rules

Front 38

QuasiCP - creditor claims

Back 38

same as CP

Front 39

Another state's CP

Back 39

normal CP rules

Front 40

Using CP funds to buy property out of state

Back 40

On divorce - CP rules
On death - outside state rules apply

Front 41

Common law marriage

Back 41

not recognized by CA

Front 42

Contract Law (living) arrangements

Back 42

Contract law governs

Front 43

Putative Spouse

Back 43

Assets - quasi-marital property
On divorce - like CP

Front 44

Unmarried cohabitants

Back 44

HE keeps it all (unless contract living arrangement existed)