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20 Cards in this Set

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Altering Character of Assets -- Premarital Agreements
1) Must be in writing
2) signed by both parties

EXCEPTIONS:
1) oral agreement executed (fully performed)
2) Estoppel based on determintal reliance

Parties can agree to just about anything EXCEPT altering either party's contribution to furnish child support:
Altering Character of Assets -- Defenses to Premarital Agreement
1) Unvoluntarily signed
2) Unconscionability
Altering Character of Assets -- Unvoluntariness test
1) Representation by legal counsel
2) Given at least 7 days to signed
3) Waiver of independent counsel waived in writing (in languauge in which party proficient) fully informed of terms of basic agreement; party must execute document declaring they received the disclosure and from whom they received it
Altering Character of Assets -- Unconscionability
Spoual Support:
-no independent legal counsel at time signed OR unconscionable

Everything else:
-unconscionable when made AND
1)no full and fair disclosure
2) right to disclosure not waived in writing
3) party challenging had no adequate knowledge of other party's property or financial circumstances
(question of law to be decided by judge, not jury)
Altering Character of Assets -- Transmutations
(Change of character of property after marriage)

1) Must be in writing
2) signed by spouse adversely affected
3) explicitly stating a change in ownership must be made
Altering Character of Assets -- Transmutations
STATUTORY RULE RE WILLS
Before death of a person who created a will or trust --> cannot be used to show transmutation
Altering Character of Assets -- MWSP
Exception to general principle that an asset titled in one spouse's name does not overcome community presumption

--> where CP was used to take written title in a married woman's name before 1975 and title did not indicate CP or joint tenancy …. property = presumptively SP
Altering Character of Assets -- How to Rebut Presumption of CP & MWSP
By H's showing of no intention to make a gift or other reason to leave title in W's name
Altering Character of Assets -- MWSP (Three different scenarios)
1) Title taken in W's name alone before 1975
2) Title in name of W&H, but title not taken in joint tenancy form, and not as husband and wife (as TIC, for example)
3) Title in name of W and some third party before 1975 (wife could be TIC with third party)
Altering Character of Assets -- Lucas Rule
Taking title as joint tenants --> presumption of CP (UNLESS separate agreement as to separate ownership)

Joint tenants (express indication "as joint tenants")
Tenants in Common
Community Property
Community Property with Right of Survivorship
Altering Character of Assets -- @ Death
--> Lucas Rule
If title taken in joint form:

Presumption of CP unless agreement otherwise

No SP ownership interest
No claim for reimbursement
Altering Character of Assets --
@ Divorce/Separation
--> anti-Lucas Rule
Ownership

-Title as joint tenants create presumption of CP
-Presumption rebuttable by
1) statement in deed showing SP characterization
2) written agreement showing SP characterization

Improvements

-SP funds to improve CP reimburseable if applied to DIP

Down Payment
Improvements
Principal Payments on Mortgage
Altering Character of Assets -- Writing Cut-Off Dates
Premarital Agreements -- January 1, 1986

Transmutations -- January 1, 1985
Effect on Parties' Actions on Characterizations -- Installment Purchase Before Marriage
Community takes pro rata rata portion of the property measured by amount of principal debt reduction

NOT included:
-mortgage interest
-property taxes -
insurance
Effect on Parties' Actions on Characterizations -- Installment Purchase Before Marriage --
Proration Formula
Principal Debt Reduction Attributable to CP
__________________________________ X Appreciation
Purchase Price
Effect on Parties' Actions on Characterizations -- Term insurance
Last premium determines character
Effect on Parties' Actions on Characterizations --
Improvements to COMMUNITY PROPERTY
Govered by RP doctrine of fixtures = improvements become party of the property; expenditure of CP does not change ownership character of house

but can seek REIMBURSEMENT for greater of:
1) CP expenditure
2) increase in value of house
Effect on Parties' Actions on Characterizations --
Improvements to OWN SEPARATE Property
No feathering of one's own nest

Reimbursement for greater of:
1) CP expenditure
2) increase in value of house
Effect on Parties' Actions on Characterizations --
Improvements to OTHER'S SEPARATE Property
Jx split, so argue both ways
SOME = Gift --> no reimbursement
SOME = Not a Gift --> Reimburseable
Effect on Parties' Actions on Characterizations -- Commingled Bank Accounts

Recapitulation Accounting
Comparing total community EARNINGS v. total community EXPENSES, to lead to inference that anything over SEPARATE PROPERTY
--> SP proponent CANNOT USE
--> SP proponent has burden of showing SP funds unavailable exactly at the time of asset purchase through: 1) exhaustion of funds or 2) direct tracing w/ith intent apply SP funds as SP

Presumption that anything acquired for family expenses was done with COMMUNITY PROPERTY
--> SP contributions = presumption of gift
--> rebuttal with an agreement to reimburse

--> If no records to clarify CP/SP = CP