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Property Regimes During Marriage: Title Theory
Property Regimes During Marriage: Community Property
Distribution Regimes at Divorce
1) Equitable distribution,
2) Community Property, (today, really similar results),
Equitable Distribution
Marriage = partnership where both spouses make valuable contributions. Allows high judicial discretion; equitable DOES NOT mean equal.aM
Statutes in each state provide guidance based on 2 important principals: 1) allocate in proportion to spousal contributions to the property's acquisition, 2) allocate according to relative spousal need.
Hotchpot or Kitchen Sink Approach (UMDA approach)
14 states. No need to characterize property as martial or separate. Can divide all property, regardless of how, when, or whom acquired.
Can exacerbate disputes about how to distribute equitably. Proponents argue makes equity easier to achieve.
Characterizing Assets as Marital or Separate
Threshold inquiry everywhere except hotchpot, plus besides there courts MUST award all separate property to the individual it belongs to.
Marital property should be broadly construed; separate narrowly construed.
Separate Property Becoming Marital
Co-mingling: S becomes M where commingled with other spouse's property.
Transmutation: S treated in such a way that it shows and intention to become M.
Both create rebuttable presumption of marital.
Considering Marital vs. Economic Fault in ED
Marital: previously considered in property division. Now only about 50% consider, 25% exclude. But practically can be in judge's mind.
Economic: Where one spouse tries to deceive the other by hiding assets. Important factor. Advise clients to be cautious against this.
Appreciation: Active vs. Passive
EX: You have titled in your name a large stock portfolio. Sometimes the appreciation can become an M asset to be divided.
Active appreciation: if non-owner spouse is making all the monetary decisions, they will be entitled to a portion of the appreciation. Must provide substantial services. Consider: value of their services, lack of compensation, occurred during the marriage, substance (did broker assist? or did they act independently?)
Passive: Inflation, changing economy. They didn't contribute --> no right. Also no right if they're giving bad advice.
Nack (classifying as S or M property)
H diputes marital classification of:
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