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80 Cards in this Set
- Front
- Back
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Valid California Marriage
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1) an essential element is a witness ceremony where the parties unequivocally and publicily declare their marriage
2) a marriage license is a mandatory requirement for the valid marriage |
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Domestic Partner's Right
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Assembly Bill 25 proves other protections for registration domestic partners in CA effective January 1, 2002:
1) right to inherit from a deceased partner 2) Right to cover wrongful dealth damagess 3) right to make medical decisoins for a parther 4) The right to use sick leave to care for domestic partners 5) right to apply for disability insurance on behalf of the partner 6) one must be 62 younger 7) no right in community property - property held in partnership status |
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Putative Marriage
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A putative marriage exists where one or both spouses believe in good faith that they are validly married, even through the fact they are not. Only the innocent party or parties qualifies as a putative spouse. A ceremonial marriage is presumed to be valid
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Meretricious Relationship
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A meretricious relationship is one where both parties know that they are not validly married.
1) cohabitation is required because from cohabitation flows the rendition of domestic services, which services amount to lawful consideration for a contract between the parties |
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Remedies available
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1) constructive trust
2) resulting trust 3) Quantum meruit 4) Equitable estoppel |
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Separate Property
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All property owned before marriage and that acquired afterwards by gift, bequest, devise or descent together with the rents, issues and profits thereof
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Community Property
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All property real or personal wherever situated acquied by a married person during marriage while domicled in CA
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Quasi Community Property
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All property acquired by either spouse while domiciled outside of california whcih would have been community property if the spouse who acquired the property had been domiciled in California at the time of its acquisition
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When dissolution involved Quasi C/P is what?
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Treated exactly like CP involbing all property both real and person wherever situated
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Where death involved Quasi C/P is?
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1) if non owner spouse dies first, no vested interest exists, property remains separate property of owner spouse
2) If owner spouse dies first, Quasi CP treated like C/P 1/2 interest exists for non-owner spouse |
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Quasi Marital Property
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All property acquired during a void or voidable marriage is in which one or both parties has the status of a putative spouse,which would have been community property, if marriage had not been void or voidable
1) termination putative marrige = 1/2 2) Dissolution of legal marriage = |
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Death of party to puntative relationship
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When the legal spouse is dead at the time the related party (common spouse) in the putative marrige dies, the putative spouse is treated as the surviving spouse for all other purposes, pension, intestate succession
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Whent the legal spouse and putative spouse are alive at the death of the common spouse what happens?
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1/2 community propery
1/2 quasi marital property can be disposed by the decedent. The remainder will pass to the legal spouse and the putative spouse, respectively. |
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Separate property source
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Separate property is property acquired before marriage
Services performed before and during marriage will result in an apportionment |
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Property by gift, devise, or inheritance is considered?
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Separate property
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Rents, issues and profits of separate property are considered?
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Separate property
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Earnings /accumluation after separation - no intent to reconcile
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Separate property
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Other separate property
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1) recoveries for interpersonal torts regardless when tort occurs
2) personal injury damages from third party - reimbuse the community 3) Diabiltiy Pay (including w/c) = replace earnings after separation |
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Professional Practices
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Spouse's education, earning capacity, future earnings are separate property allows reimbursements with interest to the community for tutition, books, education, and trainding that "substantially increases" the spouse's earning capacity. As a matter of law, there is no presumption that acquiring a law degree will result in a substantial enhancement of earning capacity. A law degree is not a ticket to prosperity
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Modification of reimbursement
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1) where the education or traning enabled the benefited spouse to obtain earnings which reduce the nececssity for support to which that spouse would otherwise have been entitled
2) Ten Year Presumption - where the c/p funded education within 10 years before commencement of the dissolution proceedings, it is presumed that the community has not received a subtantial benefit from that education or training. |
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Community Property - Earnings during marriage
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1) Include expenditure of time, skill or effect during marriage
2) includge goodwill - goodwil is the expection of future patronage and is the value based upon past performance over the above the equipment fixtures, inventory and accounts received of the business or professional practice |
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Pension Plans
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Retirement benefits (time attributable to employment during marriage)
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Pension - California
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California requires that the disability pay be treated as community property to the extent that it replaces a community interest in a pension the retired worker would have received had he not elected to receive disability pay instead
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Federal Law - Pension
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ERISA - nonparticipant spouse of a retirement plan is prohibited by ERISA from transferring by testamentary instrument an interest in undistributed pension plan benfits. Federal law preempts California state law
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Exchange Rule
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Change in form does not alter character of property
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Credit/loan transactions
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General rule Property purchased during the marriage is CP. Proper test for classifying loan proceeds are the primary intent of lender or the sole intent of the lender test
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Life Insurance
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Look to source of premium (pro-rata interest awarded to community based on percentage of premium paid with C/P
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Whole life
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Pro-rata cash value at separation
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Term
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No cash value. Cash value where the insured has become uninsurable during the term
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Mortgage Subsidy
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Wife's mortgage subsidy paid by her employer was a form of supplemental income and her separate property after separation
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Preemption (Federal Law)
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Federal Law may supersede California C/P Law
1) ERISA 2) Federal Homestead Law 3) National Service Life Insurance 4) Social Security 5) US Saving Bonds 6) military benefits (however states may sill award portions of benefits to community Uniform Services Former Spouses Protection Act |
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Separation
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Facts will indicate H/W separate during marriage
1) standard of proof is preponderance of the evidence 2) Do parties intent to reconcile 3) permanent separation = earnings s/p 4) Beware of Reverse Pereira/Van Camp 5) Reconciliation voids any living separate and apart time 6) One spouse's intent is sufficient to be living separate and apart |
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Straight Improvement
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Facts will indicate community property funds being used to improve s/p real property
1) Is community entitled to reimbursement? a) C/p fund used to improve other spouse's S/p b) C/P funds used to improve own S/P c) C/P funds used to preserve own spouse's S/P d) Pro rata appoitionment (Marriage of Sparks) |
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C/P Funds used to improve other spouse's S/P
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1) rebuttable presumption of gift
2) If presumption rebutted mus tbe by an agreement to reimburse. Agreement terms control as to amount to be reimbursed - if no amount specified then actual cost of the improvement is reimbursed |
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C/P Funds used to improve own S/P
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Community entitled to either reimbursement or a pro rata share based on the increase of the improved property attribuable to the improvement
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C/P Fund used to preserve own spouse's S/P
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Community entitled to reimbursement
*** The Wolf court also held that there was no right to reimbursement of community funds used to pay taxes on spouse's separate property |
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Moore- Community funds used to pay off purchase prive owning on S/P
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Community gains pro-rata interest thus benefits from increase in SP Moore Case
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What is the buy in theory
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Property is considered community property in the ratio that the c/p funds bear to all payments made on the separate property
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Apportionment of property payment are allocated to principal or interest
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Principal
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Lucas - Separate Property contributions to community property asset
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Lucas (gift theory) A presumption exists that title controls unless an actual agreement exists to the contray. Lucas involved used of S/P funds to pay on mortgage held as joint tenants. Presumption to be a gift absent an oral agreement to reimburse the S/P
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Lucas after 1984
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Provides for reimbursement for separate property contribution to a community property asset at divorce. Contributions include
1) down payment 2) payments for improvements 3) payments that reduce the principal of a loan |
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Marriage of Nicholson & Sparks
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The reimbursement under Family Code 2640, does not justify reimbursement of separate property used by a spouse to pay pre-existing community credit card debt since this did not involve an "acquisition of property"
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Pereira (c/p residually defined)
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Applies when the determination has been made that the C/P time and skill were the greter factor in producing the profit or increase of value. The method allocates the original S/P investment plus a fair return to the S/P (legal rate of return- 10%) multiplied by the number of years the business was held by owner spouse, while the C/P will receive the balance or residual of the profit
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Van Camp (s/p residually defined)
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Applies whenever determination was made that the community time and skill was not the greater factor in producing the profits. Rather the other factors cause the business to increase such as business or economic conditions. Under the method, the Owner spouse (c/P) will be paid for the reasonable value of his services to be the business (reasonable value may be determined by what other people in the industry performing the same services are bing paid) less what he has already been paid for salary or family expenses, while S/P will receive the residual.
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Reverse Pereria Method
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Facts will indicate profits from C/P business to which married person contribution time and skills after separation from the spouse
1) Applied when initial determination is made that such married erson's time and skills (s/p) assets after separation) was the greater factor in producing the profits (or increase in value) a) allow fair return on capital investment (c/p) and allocated such amount to c/p b) balance or profit (or increase in valude is allocated to s/p of such married person |
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Reverse Van Camp Method
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Applied when initial determination is made that such married person's time and skill were not the greater factor in producing the profits
1) allocate to the s/p of such married person the reasonable value of such person's service to the business, less any withdrawals 2) Allocate the balance of c/p |
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Transmutation Doctrine
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Either before or during marriage, either spouse may be written agreement change the status of any or all of their personal or real property, presently owned or thereafter agreements
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Transmutation Doctrine after 1986
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Oral agreements if fully executed during marriage. This could be achieved simply by performance of the marriage ceremony itself or other acts of ratification
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How does the court determine premarital agreement has been entered into voluntarily
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1) any spouse support provision, including a waiver agreement is unenforceable
2) Neither the recording of property rights to fit the needs and desires of the couple, nor realistic planning that takes account of the possibility of dissolution, offends the public policy favoring and protecting marriage |
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Marriage of Weiss
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Cannot mandate the religion a custodial parent will raise a child
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Can proof of fraud, constructive fraud, duress or undue influence affect the validity of a prematerial agreement?
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Yes
1) party against whom enforcement is sought must be representated by a independent counsel at the time of signing (7 days to seek attorney) 2) unrepresented fully informed of terms rights of the agreement explanation of rights/obligaton Information from the person who provided the information |
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Statement in Will admissiable as evidence of a transmutation
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No. A statement in a will of the character of property is n ot admissible as evidence of a transmutation of the property in a proceeding commenced before the death of the person who made the will
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Gifts
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Gifts of one spouse's S/P or C/P to the other spouse
1) donative intent plus delivery 2) may be implied through conduct of the parties in certain situations 3) as of 1987 must be in writing |
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Commingling
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Facts will indicate S/P and C/P funds held in one bank account
1) all funds presumed C/P if source can not be identified a) presumed c/p unless amount of c/p commingled wih s/p is de minimis |
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Direct Tracing method
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tracing the purchase to a separate property source
1) show separate property deposited into account and amount of separate property available to be withdrawn and was actually withdrawn. If both c/p and s/p in account must show intend to withdraw s/p intent need not be express or communicated to other party |
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Family expense method
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Attempt to prove that at the time of the purchase all c/p income was exhausted by family expenses. Presume that family expenses are paid for by c/p funds. Must show that family expenses greater than community funds.
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Legal Presumption
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All property acquired during marriage is C/P
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How can legal presumption be rebutted?
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by preponderance of the evidence either through tracing or by agreement
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Transfers of property by instrument in writing to married woman
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1) Presumption wife's s/p unless a different intention wa expressed in the writing
2) Rebuttable between H/W but conclusive as to BFP who purchased from married woman |
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Transfer of property to married women and another
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If the property was transferred to a woman and another, and the other is her husband but not so described in the document, the woman is entitled to 1/2 of the property as her separate property and the remaining property is classified as tenant in common of which the woman has a half interest. Thus in total the woman receives 3/4 interest in the property transferrred by the writing
If the woman and other are evidence as h/w the presumption = c/p |
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Effective January 1, 1987 what is presumed to be community property?
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The division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties, during the marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property is presumed to be community property. Unless...
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Community Property presumption rebutted by...
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1) clear stated in the deed or other documentary evidence of title by which the property is acquired is s/p
2) written agreement = s/p 3) joint tenancy 4) Lucas |
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On the exam what should you argue to rebut the presumptioon?
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Intent of the parties
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What date controls, date of transfer or marriage
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Date of transfer
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Spouse's separate property liable for?
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1) spouse's own debt whenever incurred
2) debts for "necessaries" of life contracted by the spouse while living together when there is no c/p 3) debts of common necessities, foot, shelter 4) nondebtor spouse's s/p is not liable for debtor's spouse's debt whether incurred during or before marriage |
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Community property is liable for?
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Debts of either spouse incurred before or duing marriage. Liability for debts incurred before or during marriage continued after death of one spouse
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Premarital debts of a spouse
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1) the c/p earnings of the nondebtor spouse are not liable for the debtor's premarital obligations as long as and only as long as those earnings are held in deposit account in which the debtor spouse has no right of withdrawal and those earnings are not commingled with other community property. Earning = compensation for personal services
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CP for reimbursement of support payments
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If CP funds are used to pay spousal or child support related to a previous marriage, and at the time of the payment of such suppot the debotr spouse has SP income which was not applied to the support, the CP of the current marriage is entitled to reimbursement from the SP income. Statute = 3 years of actual knowledge of the payment
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Torts of either spouse against a third party
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1) primarily liable where act was for benefit of community
2) secondarily liable where act was not for benefit of community 3) insurance liable first if available 4) Interspousal torts satisfied from insurance then negligence spouse's s/p, c/p |
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Third party transfers: Community Property
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a) gifts - requires written consent exception conduct of the spouse which affirms or acknowledges the validity of a gift or sale of community property
b) Waiver: spouse refrains from taking action when he or she had the opportunity to asser his or her rights c) Estoppel: Conduct by the spouse which results in detrimental reliance by the other spouse |
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What remedies are available -re transfer of c/p to 3rd party
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Non consenting spouse may set aside:
1) entire gift during lifetime of transferor spouse 2) 1/2 gift after death of transferor - spouse 3) may elect to proceed against donor-spouse or their estate 4) right to avoid transfer of c/p survives death of non-consenting spouse 5) beware of 3 year statute |
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Personal Property Consideration requirement?
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No consent is required to sell if for fair value. If sale at less then fair value, the sale requires written consent of the other spouse.
Exception- a spouse may not sell, convey, or encumber the furniture, furnishings or fittings of the home, or the clothing or wearing apparel of the other spouse which is c/p personal property without written conssent =entire transfer can be set aside |
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Real Property Consideration requirements?
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Both spouse must join in executing an instrument by which c/p realty is sold or conveyed or encumbered or leased for over 1 year, consent is required.
Exceptions0 does not apply where the lease, mortgage, conveyance, or transfer is between H adn W Remedies: 1) set aside 2) set aside 1/2 after death 3) must reimburse transferee |
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One spouse whose name alone record title is held
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Rebuttable presumption of validity of transfer for consideration by only one spouse in whose name alone record title is held if transferee takes real property interest in good faith and has no knowledge of the marriage relation (BFP)
1) pre 1997, presumption only applied to husband's transaction 2) Pre 1975 wife transfer to BFP was conclusively valid as all property acquired in writing is wife's s/p |
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Management and control of the c/p
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The general rule is that spouse exercising such management and control can deal with c/p as if it were his/her own.
Exception: 1) spouse operating c/p business as solel management and control 2) Clothing/household furnishings |
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Primary management and control
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Means that the managing spouse may act alonein all transactions but shall give prior written notice to the other spouse of sale, lease, exchange, encumbrance or other disposition of all or substantially all of the personal property used in the operation of the business
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Must each spouse act in good faith, if so what does that mean
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Each spouse must act in good faith with respect to the other spouse
1) full disclosure is required Marriage of Rossi- lottery winnings 2) rebuttable presumption of undue influence arises when one spouse obtains an advantage over the other spouse in a community property transaction |
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Covenants not to compete
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Ordinarily when the covenanting spouse is reimbursed for a promise not to compete after separation the payment is separate property. However, it is proper to take into account the value of the covenanting spouse's covenant not to compete in evaluating the community's interest in the sale proceeds of a business
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Testate (with a Will)
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10 s/p and c/p each spouse has the testamentary power to dispose of his s/p and 1/2 of the c/p by will
2) spouse cannot dispose of more than 1/2 C/P by will 3) beware of omitted spouse |
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Intestate (without a will)
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When either spouse dies intestate the c/p interest transfers to the surviving spouse.
Separate property- the decedent's s/p is divided among the surviving spouse and any children. The surviving spouse will receive 1/2 or 1/3 depending on the number of children or grandchildren, etc. |
