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

35 Cards in this Set

  • Front
  • Back
Community Property - definition
All property acquire during the course of a marriage is presumed to be community property
Separate Property - definition
All property acquired before marriage or after permanent separation is presumed to be separate property
Quasi-Community Property - definition
Property acquired by a couple while living in another jurisdiction which would have been classified as community property has the parties been domiciled in CA
At DIVORCE - treated like CA
At DEATH - surviving spouse has 1/2 interest in QCP in decedent's name; decedent does not have 1/2 interest in QCP titled in survivor's name
What happens to CP at DIVORCE - basic rule
Community assets are equally divided in kind unless some special rule requires deviation from equal division requirement
- Each and every community asset and liabilty must be divided equally unless economic circumstances support awarding certain assets wholly to one spouse (but have to make it even overall)
What happens to CP at DEATH - basic rule
Decedent can leave ALL of his separate property and 1/2 of the community property
If INTESTATE - surviving spouse automatically entitled to decedent's share of CP and 1/3 to ALL of SP (depending on whether issue or parents surviving)
Personal Injury Awards
1. CP if cause of action arose during marriage
- At DIVORCE - will be awarded entirely to injured spouse unless interests of justice
2. SP if cause of action arose before marriage or after permanent separation
3. If other spouse caused injury - always SP
Retirement Benefits
1. CP if earned during course of marriage
2. If earned before and during marriage - TIME RULE
- Yrs of service while married / Total yrs of service
Disability Pay and Worker's Comp
1. Either CP or SP depending on the wages they are designed to replace - depends when they are RECEIVED not earned
2. If taken in place of retirement benefits - then treated as retirement benefits
- Cannot elect to defeat the CP interest
Severance PAy
Courts are split
1. SP b/c replaces lost earnings (earned after divorce)
2. CP - arose from collective bargaining agreement (employment) and earned during marriage
Stock Options
1. CP or SP depending on when they were earned
2. Time rule to determine CP and SP shares
Yrs from date option awarded to date economic community ended / Yrs from date option awarded to date option becomes exercisable
Business and Professional Goodwill
CP if earned during marriage
Education and Training
2. Community entitled to reimbursement if
- CP funds used to pay for education AND
- Education enhances earning capacity of spouses
3. CP not entitled to reimbursement if already benefitted (more than 10 yrs); other spouse also received com. funded education; need for spousal support reduced by educatio
Acquisitions on credit during marriage - community credit presumption
(Take out loan)
1. Funds borrowed during marriage and goods purchased on credit during marriage - presumptively CP
2. BUT classified according to primary intent of the lender - what was lender looking to for satisfaction of the debt
- What is loan secured by??
- Mortage acquired before marriage is SP
Life Insurance
1. Whole - CP as far as % of premiums paid by CP
2. Term - character of final premium
3. If CP funded - named beneficiary gets 1/2; spouse gets 1/2
4. At divorce - if whole then cash value is CP in proportion to amount CP paid premiums
If H spends CP to improve his OWN SP
Community has a reimbursement claim for greater of cost of improvements or enhanced value
H spends CP to improve OTHER spouse's SP
Split of Authority
1. Presumption of gift - no claim for reimbursement
2. Community should have claim for reimbursement
H spends SP to improve CP
1. At DIVORCE - reimbursement w/o interest for DIP - downpayment, improvements, principal payments on mortgage
2. At DEATH - if title in joint and equal form (Mr. and Mrs.) then LUCAS applies - presumption of gift, no claim for reimbursement unless agreement
Actions by spouse altering character of property
Antenuptual Agreements
1. Must be in writing (S/F)
2. Exceptions - performance (marriage is not enough); estoppel (detrimental reliance)
3. Agreement can cover anything - cannot limit party's obligation to provide child support
4. Defenses - not signed voluntarily and unconsiconable
Voluntariness requirements for prenup
1. Party must be represented by independent legal counsel (can waive but must be in separate writing
2. Party given at least 7 days to sign b/t being given agreement and signing
3. If no counsel - fully informed in writing of terms and basic effect of agreement and what rights giving up
4. Party must sign doc stating given this info and by whom
Unconscionability in prenups
1. If not spousal support provision - unenforceable if unconscionable when made and no disclosure of other party's property; right to disclosure not waived; party had no adquate knowledge
2. Waiver of spousal support is basically always unenforceable (unless attny)
1. Agreement b/t spouses to change the character of an asset or series of assets
2. Before 1985 - could be oral or inferred from conduct or written
3. Must be in writing
Married Woman's Special Presumpton
1. Special presumption - applied to property taken in married woman's name alone before 1975
- Presumed to be separate property
- B/c H was given sole management and control of community
2. Does not apply to assets where some intent other than gift is shown or where woman controlled how title was taken
Three situations where MWSP applies
1. Title taken in W's name alone before 1975
2. Title in name of W and H before 1975, but NOT taken in joint tenancy form and NOT as H and W
3. Title in name of W and some third party before 1975 (W is Tenant in Common with Third party)
Taking Assets in Joint Title - Characterization at DEATH
1. LUCAS applies
2. When married couple takes title in joint and equal form - inconsistent with preservation of separate property interest in asset
3. Any SP used is presumed to be gift unless oral/written agreement to contrary
Taking Assets in Joint Title - Characterization at DIVORCE
1. Rules vary depending on when asset acquired
2. Property taken in joint tenancy b/t 84 and 87 - presumed to be CP for divorce
3. PRoperty taken in any joint form after 87 - presumed to be CP
4. SP does not have any ownership interest
5. BUT SP entitled to reimbursement for contribution - DIP
Community Labor Enhancing Value of SP
CP entitled to share in increased value of SP b/c spouse's labor during the course of the marriage used to increase business
- Pereira
- Van Camp
Discuss BOTH
1. Personal Skills and Labor
2. When increase in value of separate property business is primarily result of community labor
3. SP gets - value of business at time of marriage and add simple interest (10%) per year
4. Remainder is CP
Van Camp
1. Valuable Company or Asset
2. Used when increase of value of business is primarily result of the unique nature of the SP asset
3. CP gets - fair salary for the community labor multiplied by years of marriage; minus any salary already receive and anything paid for CP expenses
4. Remainder is SP
Distribution at Divorce - Reasons to deviate from equal division rule
1. Misappropriation by one spouse
2. Liabilities exceed assets - who can best pay
3. Eduational debts - go to one who got education
4. Tort liabilty assigned to tortfeasor spouse (unless liability for benefit of community)
5. Family home may be awarded to person with kids
Distribution at Death
1. Spouse has will - can dispose of all SP and 1/2 of CP
2. If intestate - CP all to surviving spouse.
- SP - spouse gets b/t 1/3 and all depending on issue or kids
Management and Control during Marriage
1. General Rule - spouses have equal management and control
2. Exceptions
- Real property transfers - both spouses must join
- Personal belongings (clothing, furniture)
- Spouse managing a business given primary control
- Bank acct in name of one spouse only
1. Supremacy Clause - fed law preempts inconsistent state law
2. Preempted - federal homestead claims; military life ins benefits; US savings bonds; Social security benefits
3. Not preempted - RR retirement benefits; military retirement benefits; copyrights
Common Law marriage
Not recognized in CA unless it was validly contraced in another state
Unmarried Cohabitants
1. Governed by general contract principles
2. Express Contract
3. Implied contract - can seek equitable remedies (quantum meruit; constructive trust)
4. Not enforceable if just based on sex
Putative Spouse
1. Not lawfully married but has goof faith belief based on objectively reasonable grounds that she is lawfully married
2. Almost same rights as lawful spouse - to CP; quasi-CP
3. If putative knew it was invalid - then characterized as unmarried cohabs