Idaho Community Property

Front 1

Commingled Funds

Back 1

presumed to be community funds. The presumption can be rebutted by either a) direct tracing or b) total recapitulation accounting. Burden of proof is on separate party claimant.

Front 2

Direct Tracing

Back 2

Trace the money and rebut the presumption

Front 3

Total Recapitulations Account

Back 3

Add up all the community deposits put into the account, subtract all of the community expenditures deducted from the account, and what is left over will be considered SP

Front 4

Mixed Property

Back 4

Under the inception of title rule, a separate business remains separate. However, increase in value of a separate business that occurs during marriage may be partially or entirely community. The part of the increase that is attributable to the "inherent nature" of the business is separate; that part that is attributable to the expenditure of community labor is a form indirect compensation and is community property.

Front 5

Mixed Property increase

Back 5

1) Community / inherent nature
a) Size of Business
b) # of employees
c) Spousal Involvement
d) Continuous or all of a sudden
2) Has the community been properly compensated. If the spouse has been under compensated then the community is reimbursement
3) The remaining balance is SP

Front 6

Mixed Property: Retirement Plans

Back 6

Preference for determining the present cash value of a retirement plan as of the date of divorce, awarding the plan to the employee-spouse, and awarding other off-setting property to the other spouse. If present cash value cannot be determined, or if there is insufficient off-setting property, the court, by a QDRO, can reserve jurisdiction to award spouse their interests in the plan, if as and when the benefits are first payable.

Front 7

Mixed Property: Retirement Plans: Lump Sum Method aka Present Cash value Method

Back 7

A court will figure out the community's interest in the plan and then award the employee/spouse all right, title and interst in the plan. The nonemplolyee/spouse will receive otehr CP to compnsate for the retirement plan. This method ensure a clean break between the parties and that's why is is the preferred method.

Front 8

Mixed Property: Retirement Plans: The Maslen Method

Back 8

The community's interest is determined to be the Present Cash Value of the plan at the time of the divorce minus the PCV at he time of the marriage.

Front 9

Mixed Property: Retirement Plans: The Reserved Jurisdiction Method

Back 9

Community Property=married years in plan/total years in plan (x) monthly pension payment

Front 10

Qualified Domestic Relations Order (QDRO)

Back 10

Signed by the domestic relations judge and directed to the plan administrator telling her to make the nonemployee/spouse an alternate payee in accordance with the mathematical formula above.

Front 11

Stock Options

Back 11

Stock options that have already vested prior to marriage are separate property. The community's interest in annual stock options that vest after marriage DURING a year in which parties were married is calculated in accordance with the following time rule, the Modified Short Time Rule
--Community's Interest in options year =Days of Marriage during the vesting year/365

Front 12

Mixed Property Goodwill

Back 12

Capitalization of Excess Earnings Formula=Net profit minus what you have already paid yourself. Excess earnings multiplied by an accountant's multiplier (1&5)=goodwill.

Front 13

Social Security

Back 13

There is no community property interest in social security because of federal preemption

Front 14

U.S. Savings bond

Back 14

State community property can be looked to prevent fraud or breach of trust by spouse, but the power to transfer or dispose of bonds is preempted by federal law.

Front 15

Term Life Insurance-Risk Payment

Back 15

Whther the death benefit of term insurance is separate or commmunity depends on source of last premium piad. If the last premium was paid with community funds, one-half of the death benefit belongs to surviving spouse even if the decedent spouse name a different beneficiary.

Front 16

Term Life Insurance-Whole Life insurance:

Back 16

You pay a premium that includes both a death benefit and a cash value. Part of the premium goes towards the death benefit but part of the premium is used to build up cash value: A) Cash Value of whole life sinsurance-Time Rule
i) Whatever percentage was paid using separate money will be SP
ii) What percentage was paid using community will be CP
During lifetime of insured, the community and separate components of the cash value is prorated using the tie ruel method.
b) Death benefit of whole life insurance-Inception of title rule (6)
i) If policy was acquired while the spouse was not yet married, the death benefit will be construed as SP. If CP money is used later on to continue paying the premiums, the community is entitled of the premiums that are paid

Front 17

Worker's Compensation/disability

Back 17

a) pre-marital or post-marital disability that gives rise to benefits is SP
b) Disability during marraige are CP to the extent they are designed to replace a loss of marital income. Upon divorce, the disability payments revert back to SP

Front 18

Personal Injury Recoveries

Back 18

a) damages to the body; pain and suffering, disfigurement, and for post dissolution lost wages are separate property
b) Damages for medical expenses and lost wages incurred during the marriage are community property
c) Loss of consortium-The presumption would be CP depending on the frequency of consortium.

Front 19

Division of Community Property

Back 19

Absent compelling reasons to the contrary, the community property is to be divided on divorce "substantially equally," although not necessarily in kind. In deciding whther unequal division of community property is proper, the court may consider: duration of marriage, existence of ante-nuptial agreement (but the court cannot amend or rescind it), age, health and employability of spouses. Community property not divided at divorce is held by the former spouses as tenants in common. The court cannot order the sale of separate property, but can impose a lien on it.

Front 20

Marriage

Back 20

All Children Like Chocolate
Age
A) 18, B) 16-18 consent from one parent, C) Under 16 consent from one parent, consent from judge, and physician opinion that the minor is developed physically and emotional duties
Capacity
a) No Incest
b) No bigamy
c) No Same Sex
d) Sound Mind
License
a) County Recorder
b) Obtain and read an AIDS advisory pamphlet
Ceremony
a) One presided by a judge, clergy person, governor, former governor, lieutenant governor or mayor.

Front 21

Premarital Agreements-Technical Validity

Back 21

1) signed
2) In writing
3) Recorded

Front 22

Premarital Agreements-Subject Matter

Back 22

Anything Except
1) illegal conduct
2) adversely affect the support of a child
3) no spousal support if to do so means that the other spouse has to go on welfare

Front 23

Premarital in the Inducement

Back 23

1) party trying to get out
i) involuntary
ii) unconscionable and lack of full and fair disclosure.

Front 24

Premarital Agreements

Back 24

1) Technical
2) Subject Matter
3) Inducement

Front 25

Termination of the Community

Back 25

The community is terminated by death of either spouse, Decree of Divorce, Decree of Legal Separation (but not mere physical separation), Decree of Annulment (retroactively) or written agreement. Marriage settlements must be in writing, acknowledged, and if they affect real property, recorded in county where the real property is located.

Front 26

Separate Property presumptions

Back 26

Seprate Property is what is owned before marriage, or acquired after marriage by gift, devise, bequest or descent, the "natural increases" and proceeds of separate proepry, but not he income of separate propery. Property conveyed by one spouse to the other is presumed to be a gift of separate property to the grantee spouse.

Front 27

Community Property Presumption: Post-Marital Acquisitions

Back 27

All property acquired during the marriage--including the net income from separate property-is presumptively community property, regardless of whether one or both names are on the title. Each spouse owns an undivided one-half and equal right of management.

Front 28

Community Property Presumption: Post-Marital Acquistions-Burden

Back 28

Person claiming the property as SP has the burden to rebut the CP presumption "with reasonable certainty and particularity that the property acquired during the marriage is separate property.

Front 29

Community Property Presumption: Asset on Hand.

Back 29

All assets on hand during the marriage or at the time of the divorce are presumptively community property. The burden of proving that an asset is separate property is on the party so contending, by clear and convincing evidence.

Front 30

Inception of Title Rule

Back 30

Idaho follows the "inception of title" (or tiem of acquisition rule) the classification of an asset as community or separate is fixed at the time it is acquired. The fact that community funds are spent to improve or payoff separate property may give the community a claim for reimbursement, but doesn't change the classification of the property as separate property.

Front 31

Quasi-Community Property

Back 31

Property acquired out of state is classified according to the law of the matrimonial domicile at the time the property was acquired, except upon death of a spouse. In decedent's estates cases only, Idaho will treat as community property the following types of property acquired out-of-state, regardless of what the out-of-state law is, if the property would have been community property had they been domiclied in Idaho at the time of the acquisition: all personal propery; all real property located in Idaho; real property located out of state if the other state allows Idaho law to govern.

Front 32

Reimbursement of the community for expenditures of separate property; Reimbursement of one spouse for community expenditures

Back 32

If community funds are used to improve or payoff separate property, the community has a claim for reimbursement secured by an equitable lien. In the case of improvements, the amount of the community's claim for reimbursements is the increase in value of the separate property attributable to the expenditure. In the case of the payoff of seprate indebtedeness, the community has a claim for proper credit. If seperate funds are used to improve or payoff community assets, the separate property is entitled to reimbursement based on the amount expended.

Front 33

Management and Liabilities

Back 33

Each spouse has equal right to control, manage and dispose of community property (one spouse's signature is sufficient, except: a) both spouses must sign to convey or encumber real property (but not to acquire); b) one spouse cannot unilaterally makes gifts of community property without the consent of the other spouse.

Front 34

Debts

Back 34

Debts incurred during the marriage are presumed to be for the benefit of community. Separate property is generally liable only for one's own separate debts; community property is generally liable only for community debts.

Front 35

Community Liability-torts

Back 35

Community liability for torts depends on whether he tortfeasor spouse was engaged i the management of community business or other activities intended to benefit to protect the community.