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40 Cards in this Set
- Front
- Back
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STATUTORY PROVISIONS APPLY UNLESS |
1) Parties agreement (pre-nup) 2) parties conduct 3) how title was taken |
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SEPARATE PROPERTY |
Property acquired before marriage, after marriage or during marriage by gift, inheritance, wills, rents, issues, or profits |
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Community Property |
property acquired during marriage |
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START ESSAY WITH THIS |
CA is a community property state. There is a community property presumption where all assets acquired during the marriage presumptively are CP. There are areas of SP. SP property is property acquired before marriage, after marriage or by gift, devise, inheritance, or will. SP can also be transmuted to CP and vice versa. |
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PERMANENT PHYSICAL SEPARATION AND INTENT NOT TO REMAIN IN THE RELATIONSHIP BY 1 PARTY |
sufficient for separate property (if you maintain the facade of marriage then you are married for the sake of CP) |
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economic circumstances |
ex: home given to one spouse and other spouse gets assets of comparable value |
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Education |
Loans go with you unless you've been married for 10 years after graduation, there is a presumption you added enough value to the community |
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tort liability |
one spouse Sp if not based on community benefit |
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Personal Injury Award |
CP unless divorce, then awarded to injured spouse unless interest of justice requires otherwise |
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Negative Community |
Community liability exceeds community assets (relative ability of spouses to pay debt) |
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Testamentary Power |
T can only devise all of T's SP and 1/2 of T's CP |
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Widows election will |
can take against the will and take CP and relinquish all will gifts |
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Acquisitions on credit |
funds borrowed during the marriage are presumptively community credit |
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Primary Intent of the Lender |
If loan secured entirely on one persons credit (intent of lender) then SP |
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Fiduciary Duties |
Highest good faith towards each other |
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Transmutation |
Sp to CP or Cp to SP Agreement No consideration required before 1985 oral agreements okay, now writing required Gift of tangible property of insubstantial value, no writing required |
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Pre-nup |
Oral agreement is invalid--must be in writing unless oral agreement executed or unless estoppel based on detrimental reliance (unjust enrichment). Parties can agree to just about anything except furnishing child support. |
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Defenses to Pre-nup |
1) Agreement not signed with independent counsel and had 7 days to review 3) unconscionably (decided by the court). Spousal support, independent legal counsel, provision unconscionable at time of enforcement and disclosure of other parties property and financials.
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Married Women's Presumption |
property taken before 1975 in wife's name alone is her SP, husband can rebut by showing she did it for some reason |
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Lucas and Anti Lucas |
LUCAS: If title taken jointly, when wife dies, CP presumption |
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Pro Ration Rule |
Community estate takes a pro rata portion of property measured by an amount of the principle debt reduction attributabal to the expenditure of community funds. |
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Term insurance |
Last premium determines the character |
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Community funds used to improve SP |
Improvements become a paart of the property claim for reimbursement can be filed. Community gets the greater of the community property expenditure or difference of the improvements (the added value). |
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Commingled Bank Accounts |
Family expense presumption-CP used over SP presumption if SP is used for this, it is a gift to the community with no reimburesment |
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EXHAUSTION METHOD |
no community property funds available to pay so SP paid |
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DIRECT TRACING |
sufficient SP funds available and were used |
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PERIERA--ACCOUNTING |
Personal skills and effort |
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VAN CAMP |
Valuable company or asset -capital investment was the main part not skill -value community labor and the rest is SP -assign managerial salary minus family expenses |
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Pension Benefits |
CP -a form of deferred compensation |
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Disability & Workers Comp |
treated as a salary when received, not when earned after divorce, SP |
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Severance Pay |
Could be SP because it replaces lost earnings |
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Stock Options |
If option is awarded during marriage and vests after formula is applied it is dependent on employer |
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Stock Options HUG |
years from date of employment to date economic community ends over years from date of employment to date options became exercisable |
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Stock Options Nelson |
years from date options are granted to the date economic community ends over date option granted to date it becomes exercisable |
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Goodwill |
Qualities generated beyond labor and skill (provided by expert) and is CP |
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Tort Recovery |
CP |
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Tort Liability |
CP is subject to liability from one spouses liability if act was for benefit of community |
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Earnings Debt |
Earnings of non-debtor spouse can't be reached to pay creditors if accounts are separate other person is not personally liable |
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Prop Acquired Outside of Marital Relation |
Ca does not recognize as marriages except if it was a common law marriage that was valid in another state K law governs common law marriage |
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Putative Spouse |
Objectively reasonable and good faith belief that couple was lawfully married is so... QCP |
