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17 Cards in this Set

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Specific Assets -- Business Profits
Van Camp & Pereira -- whichever accomplishes substantial justice

Pereira (CP friendly)
-pay interest on SP --> rest is CP
(family expenses not deducted)
**when business growth because of spouse's efforts

Van Camp (SP friendly)
value of community labor - less family expenses = CP
rest is SP
***when business growth b/c of market forces
Specific Assets -- Pensions
EE retirement benefits accumulated during marriage, whether vested or not at time of of the divorce, are CP (prorate)

Two options for distribution:
1) "If and When Received"
2) Cash out by awarding assets of equal value
Specific Assets -- Pensions
Awarding of Benefits
1) "If and When Decree" - if and when received, spouse gets share
2) Cash Her Out -- award other assets of equal value
Specific Assets -- Pensions
QDRO @ Divorce
Qualified Domestic Relations Order

Non-participant spouse can get their share at DIVORCE
Specific Assets -- Pensions
@ Death
If non-participant pre-deceases participant, ERISA preempts and no interest
Specific Assets -- Disability Pernsion/Worker's Compensation
Treated as wage replacements

Characterized based on when received, not when earned
Specific Assets -- Severance Pay
Jx Split --> argue both

SOME SP as replacing earnings

SOME CP as arising from work relationship from during marriage (think about proration)
Specific Assets -- Stock Options
If awarded during marriage but does vest until after community has ended --> proration AND employer intent

Employer intent:
-for past services --> Hug Rule
-to incentivize staying with company --> Nelson Rule
Specific Assets -- Stock Options
Hug Rule
Distribution of Stock Options that were based on past service

Prorate for number of shares

Years from date of employment - date community ended
________________

Years from date of employment - date option vests



DIVISABLE AT DIVORCE
Specific Assets -- Stock Options
Nelson Rule
Distribution of Stock Options to incentivize to staying with company

Prorate for number of shares
Years from date option granted to date community ends
___________________
Years from date options granted to date options become exercisable

DIVISABLE AT DIVORCE
Specific Assets -- Goodwill of Professional Practice

Valuation
(Determined by experts, but eyeball guestimate using common sense & what would net higher amount?)

Market Sales
-what amount would goodwill net if sold today

Capitalization of Past Excess Earnings

-value of efforts during marriage and their impact on future profits
Specific Assets -- Goodwill of Professional Practice
To extent acquired during marriage, is CP subject to division on divorce

Goodwill = qualities that generate income beyond that derived from professional labor, r/s return on capital and physical assets; usually determined by experts

CAN'T be limited by partnership agreements!
Specific Assets -- Educational Expenses
Reimbursement for cost of education if the education enhanced earning capacity

Includes reimbursement for expenses before marriage but loans paid with community funds, factors to increase/ decrease reimbursement:
-more or less than 10 years
-other spouse also received CP-funded education
-spouse who received education likely to not need spousal support
Specific Assets -- Tort Awards
Recovered from third-party --> CP
divorce -switches back to SP to injured spouse upon divorce so long as can be traced AND was not already spent UNLESS interests of justice required otherwise
death - CP

Recovered from tortfeasor spouse --> SP of injured spouse
Specific Assets --
Life Insurance Proceeds @ Death
Whole life --> proportion based on community payments to premium

Term life --> proportion based on community payments to premium AFTER separation
Specific Assets --
Life Insurance Proceeds @ Divorce
Whole life --> prorate based on community v. separate payments

Term life --> no cash value at divorce
Specific Assets --

Whole Life v. Term Life
Whole life --> cash value; divisible at divorce

Term life --> no cash value (contigency-ish); no value at divorce