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92 Cards in this Set
- Front
- Back
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Residency Requirement for CP
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"To apply CA CP law, one spouse must live in CA for 6 months and live in filing county for 3 months. If one spouse moves to CA and the other doesn't the court doesn't have JN over spouse not living in CA. The court can: dissolve the marriage and decide custody. The court cannot: decide child or spousal support or divide property."
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Grounds for Divorce in CA
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"No Fault. Two Grounds: Irreconcilable differences, incurable insanity. Superior court has JN."
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Community Property
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" (FC 760) – all property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in this state. (earnings) At divorce – 50/50. At death – No will - all to wife, with Will – can decide 50%"
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separate property
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" (FC 770) – all property owned before marriage, and all property acquired during marriage by gift or inheritance, earnings after separation, or the rent, issues (offspring), and profits of separate property. At divorce – belongs to the SP holder. At death – will – whomever the person chooses. or if no will according to the rules of intestate succession."
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Exceptions to the Equal Division of CP
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"1) personal injury recovery 2) deliberate concealments or misappropriation of the CP 3) Low asset (less than 5,000) & default dissolution" 4) When reimbursement is satisfied.
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When to premarital agreements become effective? What are some topics that cannot be contained in these agreements?
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"Becomes effective upon marriage. Can only be amended by written agreement. Cannot alter the legal relations between husband and wife. Cannot limit child support. "
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1986 Premarital Agreement Act (DATE TO REMEMBER)
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Agreements made during 86 and after must 1) be voluntary 2) be in writing 3) be signed by both parties 4) parol evidence can interpret but not insert missing terms 4) subject to SoF exceptions (proissory estoppel/part erformance)
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Defenses to enforcing premarital agreements
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1) not voluntarily executed (fraud coercion or lack of knowledge) or 2) unconscionable and the spouse was not provided with fair and reasonable disclosure
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2002 premarital agreement act
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"(retroactive) Spousal support provisions will not be enforce unless spouse was represented by independent counsel. Also, spousal support provisions can be held unenforceable if they are unconsionable at the time of enforcement."
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Bonds factors for finding of coercion
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STUPID: 1) Surprise 2) Timing (close to the wedding) 3) Unequal bargaining power nderstanding 4) Presence of independent counsel 5) Intent - a lack of understanding of the intent of the agreement 6) Disclosure of assets
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Statutory Factors indicating fraud/coercion
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1615c - TIFFF - 1) Timing (no less than 7 days) 2) Independent Legal Counsel 3) Fully informed of rights and obs 4) Fraud or undue influence 5)Factors - any other.
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Transmutation prior to 1985
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"Could be done by conversation, conduct or writeen agreement. Just had to show intent to transmute property. It was the intent of the spouse who was transferring that had to be shown."
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Transmutation after 1985
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"You can transmute SP to SP, SP to CP, or CP to SP. Must be done by a written, express declaration. Has to be binding on the person who is adversely affected. Should use the word TRANSMUTE. A signed deed that transfers SP to JT is a transmutation. Must be clear - the term tranfer does not mean transute"
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Can extrinsic evidence be used in regards to transmutation agreements?
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No, Extrinsic evidnce is inadmissable to interpret the terms of a written transmutation agreement.
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Can partial performance defeat the lack of a transmutation agreement?
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No partial performance exception to the writing requirement of the transmutation agreement. But you could look to the breach of fiduciary duty between spouses.
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Gift Exception for transmutation
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Not all transmutations should be in writing. A gift between spouses of a personal nature that is not substntial in value taking into account the circumstances of the marriage is allowed.
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Transmutations in a will
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Would only work after death. Duh.
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Fraudulent Transmutations
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1) Made with the intent to defraud a creditor
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Apportionment when SP and CP are used to purchase property (not real property)
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Pro Rata Apportionment. Portions are in direct propportions to contributions. If SP is 40% then they get 40% of the increase in value.
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Property and Reimbursement Analysis
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"Two step analysis. First 1) Characterize the property (Lucas or 2581) then, 2) Look for a remedy for the separate property contributor (2640)"
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General Community Property Presumption
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Property acquired during marriage is presumed to be CP. The SP proponent carries the burden of proof to rebut the presumption by a preponderance of evidence.
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Lucas Presumption regarding general CP presumption
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"Prior to 1984, an agreement between the parties can rebut the community property presumption. Can be oral, implied or written."
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Rebutting the general CP presumption after 1984
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2581: only a clear statement in the deed or title or a written agreement will rebut the community property presumption.
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Brooks and Robinson Presumption
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"Title in One Spouse's name is presumed to be the SP of that spouse. Applies only to titled property. Requires knowledge/agreement of Husband and Wiofe to put title in one name only, can be an oral agreement. If there is no agreement, the presumption does not apply. Can only rebut this with clear and convincing evidence that title does not reflect ownership"
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Married Woman's Special Presumption - KNOW THE DATE
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"1975 - Prior to 1975, if a woman acquired property in her name along in an instrument in writing, it is presumed to be her SP. Also, if acquired as a TIC her portion is SP. Only the intention of the husband plus tracing can rebut, not tracing alone."
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Joint Tenancy Deeds
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"All JT deeds are presumed CP even if bought with SP. Funds will not control. Can only be rebutted by tracing and agreement. Upon death, the right of survivorship kicks in and becomes 100% SP of the surviving spouse."
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Reimbursement of SP contribution to CP prior to 1984
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"Apply Lucas: the SP contributor will be entitled to reimbursement if there is a reimbursement agreement. Othersiwe, the SP contribution is considered a gift to the community."
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Reimbursement of SP contribution to CP after 1984
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2640 - (1984) There is a right to reimbursement for SP. Reimbursement is without interest. Appreciation remains CP. Only applies if the property is characterized as CP after 2581. Unconstiuttional to apply 2640 retroactively. Prior to 1984 apply the Lucas Presumption
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Tenancy in Common
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CP at divorce. But people can have unequal interests. No right of survivorship.
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Improvements
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"Cannot be sold separately therefore they will either be characterized as a gift to the community, or we can allow for reimbursement."
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SP to improve SP
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"Before 2005 it was presumed a gift. After 2005, 2640 applies a right to reimbursement."
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CP to improve other spouse's SP
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"Prior to 2001 it was a gift to the community, after 2001 right to reimbursement."
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CP to improve your own SP
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"If either spouse appropriates without consent, the community should be reimbursed."
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Amount of reimbursement for improvements
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Either the amount expended or the value added- whichever is greater.
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Community Property with the right of survivorship
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"Like JT. On Divorce - CP, On death - like JT."
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Tort Awards to one spouse
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"Before marriage - always SP. During marriage - Recovery is CP, BUT: in property division upon DIVORCE entire recovery to injured spouse UNLESS interests of justice, including economic need, require otherwise. On death it is characterized as CP."
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Commingled Bank Accounts - family expenses
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CP funds are presumed to pay for family expenses. SP funds are only used when CP is exhaused. When SP funds are used to pay for family expenses the SP has no right to reimbursement unless the parties agreed to it.
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Commingled Bank Accounts - indirect tracing (exhaustion method)
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"SP proponent can rebut the CP presumption if at the time of acquisition, all CP was exhausted by family expenses. Spouse that commingles the funds assumes the duty to keep adequate records. Rarely used - over time it is difficult to show what was in the account."
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Commingled Bank Accounts - Direct Tracing
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"When both types of funds are in one account, the SP proponent shows that SP funds were in the account and that they intended to use the SP funds to buy the property in question. (Availability of funds coupled with the intent to use them.) Estate of Murphy adds a third requirement - showing disposition of funds."
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Joint Bank Accounts
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Presumed to be CP and can be rebutted by tracing.
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When to use direct and indirect tracing for commingled accounts?
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You can only use indirect tracing when all CP is used up. When both are available you must use direct tracing method.
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commingled accounts
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Can use indirect tracing or direct tracing. Either tracing applies at divorce or death.
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Goodwill
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expectation of continued public patronage
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Celebrity Goodwill
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"Not really ""goodwill"" - not subject to division at divorce."
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Goodwill for professionals. Two approaches for calculating. What judges cannot do when calculating goodwill.
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Individuals who are professionals have goodwill. Market value - look at the market value of the business at the time of separation. Capitialization method - look at the income and subtract a reasonable salary. Judge must value goodwill based on facts - cannot just average numbers given by parties. Cannot use any method that takes into account the post-marital efforts of either spouse.
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Educational degrees
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"1. Professional degree is not property, but debt goes with educated spouse. 2. Reimbursement available for educational expenses that enhanced earning capacity - Reimbursement also available if the educational expenses were incurred before marriage and the loans were paid with community funds after marriage. The community is reimbursed. 3. Defenses to reimbursement: i. Community has already substantially benefited (10 yrs passed presumption) ii. Other spouse also received CP-funded education 4. Efforts of teh spouse may be considered in awarding spousal support."
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Degrees sought for the love of learning
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"Education must be to enhance the earning capacity of the spouse seeking the degree. If the degree does not enhance earning capacity, the supporting spouse may be out of luck."
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Pensions
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"To the extent earned during marriage, the pension is CP. Two options: employee keeps entire pension and buys out spouse or determine the community's interest in the pension and postpone payment until later. Some federal jobs trump california law and require benefits to be SP."
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Time Rule for calculating pension interest
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Lengh of service during marriage divided by total length of service or how many years they must work in order to retire.
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vested pensions
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"a right that survives firing or quitting, vested pensons are CP"
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non-vested pensions
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now considered a contingent interest in property. Possibility that it may not vest.
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matured pensions
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when it provides an unconditional right to immediate payment. Usually when employee reaches eligible age for retirment.
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The keep working rule
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One spouse cannot frustrate or defeat the community interest of the other spouse by continuing to work beyond retirement elgibility. Gilmore electon - the spouse awaiting the pension can either wait or get payment now. State plans anticipate this. The Feds don't.
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Disability payments
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"Typically SP, compensate the individual for future diminished earnings and compensate the individual for pain and suffering."
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What if a spouse is given a choice between disability or retirement? How do we categorize it?
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The court said labels don't control. If the disability is meant to substitute for the retirement and provide for injuries, then it is part pension and part disability.
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How does intent influence disability insurance?
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The intent of the parties purchasing the insurance controls - if the intent was to replace lost earnings then SP. If the intent was to replace retirement income, then CP.
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When may a disability policy that wasn't used during the marriged be considered SP?
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When the spouse renews the policy for a period of time after divorce.
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Severance Pay
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If it is awarded for future post separation wage it is SP. If it is awarded for past employment it is CP.
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Early Retirement
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CP if it is tied to community efforts during marriage. SP if it serves a purpose other than rewarding employment during marriage.
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Life Insurance
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"Whole life - has a value, if paid for with CP, then CP. Term life - trace to the last premium"
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Limitations to equal management of CP
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"1) access to bank account in one spouse's name 2) written consent required before spouse sells, etc. the family dwelling, furniture or clothing 3) general duty of good faith and fair dealing. (fiduciary duty)"
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Gifts to third parties
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No gifts of personal CP for less than fair and reasonable value unless the other spouse has given written consent. A non-consenting spouse can 1)ratify 2)revoke and recover property for the community 3) void half of it after the death of the donor spouse. The right to set aside the gift may be estopped or effected by the Statute of limitaitons.
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Community business
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"Primary management and control to a spouse who is operating or managing the CP busienss. The managing spouse acts alone in most transactions, but must give notice of major actions. If no notice, the spouse can sue for breach of fiduciary duty."
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SP Business
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One spouse has an SP business (owned or inherited before marriage) both spouses devote their time to it. Problem: the business itself is separate property but we need to value the increase in value as CP. Two methods: Pereira and Van Camp
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What showing is required to trigger a Pereira or Van Camp analysis? And which one do you use?
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"The spouse must have more than de minimus efforts. If not, then all of the SP goes to the SP owner. Use Pereira when the increase is caused by community effort, use Van Camp when attributable to market conditions rather than seller efforts."
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Pereira
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"If the increase in value can be attributed to the community effort then Pereira is used. Apportion the profits by allocating a fair return to the SP on the investment and allocating excess to the CP. We assume that all community expenses have already been paid, they aren't deducded from the community's portion."
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Van Camp Approach
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"If the increase in value is attributable to something other than community effort (trnds, changing consumer tastes) then use the Van Camp appraoch. Determine the reasonable value of the non-owner spouse's services, allocate that as CP, remainder of increased value is SP. Also we deduction community expenses. Means they get nearly nothing!!"
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Reverse Pereira/Van Camp
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"When a CP business increases in value after separation, do a reverse analysis. If one spouse increases it's value it is SP. If it is from other factors it is CP."
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When property is acquired on credit
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"A form of tracing: The SP proponent must trace the intent of the lender. If the lender solely relied on purchaser's SP for repayment of the loan, CP presumption may be rebutted."
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When a person acquires property before marriage on credit and CP isused to pay back the loan do contributions represent an acquision of the interest or merely a right to reimbursement?
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Moore: CP funds used to reduce the princial (not interest) will create a proportional community interest in the property. Marsden: use the ration that the amount of community funds bore to the purchase price to calculate the community interest.
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Fiduciary duty
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"includes discolsure and full access to information upon request, duty of good faith and fair dealing. Liable for fraud but not negligence. "
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Community Real Property
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"Either spouse has management and control, but both spouses must join in executiy any instrument that sells, etc real property or provides a lease for more than 1 year. "
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Third party who purchases property in good faith
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If a third party acts in good faith (doesn't know about the marriage) then other spouse can void the transaction but must repay the third party. SoL - 1 year to void the transaction.
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Restraints during divorce proceedings
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"2040 - TRO which prohits the spous from transferring, etc. any property without written consent of the other party. Exceptions: usual course of business, necessities of life. Must notify the other spouse of extraordinary expenditures at least fivce days before incurring such an expenditure. Severance of JT is allowed. Violations of TRO will be treated like a breach of fiduciary duty."
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Remedies for breach of fiduciary duty
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1) court ordered accounting 2) order to add a name to the CP held in one spouse's name 3) award of more than half the assets 4) breach of fiduciary duty - 50 percent plus attorney fees 5) breach with fraud - 100% of asset
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What property can a creditor reach?
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CP is liable for debts incurred by either spouse during marriage. SP is liable for debts the person incurs during marriage but not the spouse's debts. CP will be liable for pre-marriage debts.
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Exceptions for liability rules
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"1) a prenuptual can protect earnings from spouse's creditors 2) earnings can be shielded from spouse's debt if he keeps them in an account that spouse cannot w/d from and he doesn't commingle them with CP, 3) a married person is liable for debt incurred for the necessaries of life with the spouses are living together and for common necessaries while teh spouses are living apart."
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Common necessaries
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"food, clothing, shelter, medical care"
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Necessaries of life
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living costs consistent with the spouse's station in life.
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Prior child support obligations
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"Spouse's SP is not liable, but CP is liable for the debt. Like any other debt."
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Tort Obligations
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"Spouse is not liable for injury caused by other spouse (Unless joint tortfeasor) If tort committed for the benefit of the community - community property is liable first, then can reach spouse's SP. If NOT for the benefit of the community - take the tortfeasor's SP then the community estate."
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Living Separate and Apart
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When spouses have come to a parting of the ways with no present intention of resuming marital relations. This is when the earnings of each spouse become their SP.
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What are you liable for while living separate and apart?
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A married person is liable for the common necessaries of life of the other spouse while they are living separate and apart.
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Characterizing Debts upon separation
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"1) generally if you come into a marriage with debt, you leave with the debt 2) separate debt incurred not for the benefit of the community can be assigned to the separate debtor 3) community debts must be equally divide or confirmed to one of the spouses."
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Debts incurred after separation
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1) common necessaries are confirmed to the spouse with the ability to pay. Both SP and CP can be liable. 2) Necessaries of life (only CP is liable for these debts)
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Debts incurred after judgment of dissolution and before divorce is final
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A spouse's reponsibility for a debt incurred by the other spouse ends.
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Quasi Community Property
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Property acqured by a spouse while domiciled elsewhere that would have been community property had the acquiring spouse been domiciled in California.
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Treatment of QCP at divorce
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At divorce QCP is treated like CP for the purpose of dividing assets.
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Treatment of QCP at death
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"If the land is outside the state and was acquired while living outside the state, california has no JN over it upon death. Use the law of the situs - if they qualify it as CP, then California honors that distinction. If not, you have to continue your probate proceeding in another state."
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Is QCP constiutional?
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"Roesch - If only one spouse resides in CA, can't apply QCP doctrine. Both parties must change domicile to CA and then seek dissolution in CA court. (unless the other spouse consents)"
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Intestate succession rules
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"No will- if no children, parents, siblings, nieces or nephews – all goes to the spouse. If there is 1 child, parent, sibling, niece or nephew then ½ to each. If 2 more children (or dead children who left children), then 1/3 to surviving spouse"
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Personal Property upon death
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All personal property is treated as CP. (A car for example)
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