Community Property

Front 1

NM Burden of Proof

Back 1

To Refute the presumption of community property there must be a preponderance of the evidence, not clear and convincing.

Front 2

Inception of Title Rule
(partly separate, partly community)

Back 2

classifies at the time of title and provides for reimbursement to the community. Community shares increase.
Policy reason: it is easy to apply.

Front 3

Pro Rata Rule
(partly separate, partly community)

Back 3

Pro Rata sharing (Time rule) - community gets an interest in the asset. Money/time. Community shares increase or decrease.

Front 4

Accrued Benefit Plan

Back 4

value of the benefit at the time of the divorce subtracted by the Value of benefit at time of marriage. The difference is the interest and is community property.

Front 5

Vesting of Title rule
(partly separate, partly community)

Back 5

Only community property if you get the title while you are in the community (marriage)

Front 6

Time Rule*-common rule in NM

Back 6

Time married while pension accrues divided by total time pension accrued times 1/2. (person has 1/2 interest in pension) = community property

Front 7

Defined Benefit Plan

Back 7

d. Defined Benefit Plan*
You don't know what the benefit will ultimately be until you retire. H or W must retire before it calculated

Front 8

Defined contribution plan (directed Account)

Back 8

is where your contributions are defined. (like an IRA).

Front 9

Stock option

Back 9

a. Stock option gives you the option to purchase stock at a fixed price (usually low price). Employment benefit.
- short time rule - things that vest during the marriage
- hug rule

Front 10

Term life insurance policy

Back 10

you pay for a time and you bet on your own death. If you live past the time that you do not get anything after you die.

Front 11

Whole life insurance policy

Back 11

you pay for a policy and does not end at a time. The premiums on a whole life policy is more than a term life policy. There will be a cash distribution at the end of your life.

Front 12

The "Terminable Interest" Doctrine

Back 12

they have a community property interest, but the interest goes disappears when the spouse dies.

Front 13

Death Benefit Rule

Back 13

No death benefit until you die. There is no property interest that you get during the marriage. Must be married to get any death benefits.

Front 14

Characterization of Acquiring Credit (2 Elements)

Back 14

Names on the deed
Both Signed debt documents

Front 15

Priorities for satisfaction of separate debts

Back 15

1) Separate property
2) 1/2 of joint property
3) 1/2 of community property interest
4) Residence (Homestead exemption)

Front 16

2 ways of improving property

Back 16

Reduce the equity or Capital improvements (remodeling)

Front 17

Apportionment for the increase in value for property (improvements)

Back 17

Community Mortgage Payments divided by total payments (= the percentage) times value of the property.

Front 18

Improvements Presumption
Bono v. Clark

Back 18

the court will no longer presume that improvements are gifts to the community.

Front 19

Buy-in Formula (improvements)
Bono v. Clark

Back 19

half of the appreciation from the property's improvements.
Percent community property times the appreciation during the marriage. Only from the time the money was spent for the improvments.

Front 20

Reimbursements Formula* NM
(improvements)
Parker v. Parker

Back 20

half the dollars they paid for the improvements.

Front 21

Direct Tracing Rule

Back 21

If you can trace it then it retains its separate title. But community labor or a separate asset becomes community

Front 22

Tracing Burden of Proof

Back 22

Person tracing the asset has burden of proof. Otherwise, presumption is community property.

Front 23

Tracing definition

Back 23

means having the documentation.

Front 24

The American Rule - NM*

Back 24

Rents and profits of separate assets retain their characteristics as separate

Front 25

All or Nothing Rule

Back 25

Were the gains primarily from work or from property, whichever one has more is where the funds come from. No splitting.

Front 26

Apportionment Rules

Back 26

1. Per Eria
2. Van Camp

Front 27

Per eria
(apportionment)

Back 27

reasonable rate of return, the rest is community property. If the increase due to the inherient nature of the property, use per eria.

Front 28

Van Camp
(apportionment)

Back 28

values community labor, the rest is separate. If the increase is primarily due to labor use van camp.

Front 29

tort proceeds

Back 29

tort proceeds are community unless there is compensation for loss of work.

Front 30

waste bucket approach - California

Back 30

Lost wages = community
Pain & suffering = separate
Time, e.g. lost wages post divorce = separate

Front 31

Disability Benefits

Back 31

If the disability insurance is paid with community funds, then it is community property. NM - direct tracing for disability benefits.

Front 32

Professional Goodwill
(characterizing) 2 types

Back 32

Tangible asset value
intangible asset value

Front 33

Goodwill

Back 33

Goodwill is an asset that can be valued and you can get part of it if you get divorced.

Front 34

NM - Title Controls

Back 34

When only one spouse is named in the document, only the spouse so named may manage. When both spouses are named in the title, both spouses must join to dispose of or encumber such community personal property

Front 35

Basic Rule of Equal Management - NM Rule

Back 35

Joinder is required for real property transfer.

Front 36

Joinder Requirements in Equal Management States rule

Back 36

Property held in trust for the benefit of someone else is not community property.

Front 37

Joinder Requirements

Back 37

1) Estoppel
2) Ratification
3) authorizations

Front 38

void transactions - NM*

Back 38

1) law treats as having no legal effect.
a) Anyone can challenge at any time.

Front 39

constructive fraud

Back 39

1. Size of the gift in relation to to the total of Comm. Prop.
2. Adequacy of the estate remaining to support the Wife
3. The realtionship to the donor to the donee.

Front 40

reasonable gifts rule

Back 40

Each spouse has the power to dispose of Comm. Prop. subject to fiduciary duty.

Front 41

Fiduciary duty

Back 41

duty of highest faith and fair dealing. Duty to disclose
1. one spouse was disadvantaged or advantaged
2. disclosure agreement

Front 42

Trigger's Accounting

Back 42

1. Divorce
2. Separation
3. Death
4. Reasonable request

Front 43

Necessaries Doctrine
(Managerial System of Libaility)

Back 43

Debts for necessary bind community and even separate property.

Front 44

Item Theory of division upon death* NM

Back 44

Each spouse has a half interest in every item. By will the deceased may only will away half the item

Front 45

Aggregate Theory

Back 45

split the items, or sell and split the money.

Front 46

putative spouse doctrine

Back 46

the individual who enters into such matrimony ignorant that her partner has a wife or husband living is in law not only innocent of crime, but has all the rights, incidents, and privileges pertaining to lawful marriage, and these are continued as long as there is ingnorance of the former, or of impediment to the second marriage.