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25 Cards in this Set

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  • Back
Characterization analysis
1) When was the asset acquired?
2) How was it acquired?
3) Did either or both spouses act in any way that may have changed its character?
4) Any legal presumption that may affect its character?
Property acquired during marriage that is SP
1) Gift, bequest, devise, or descent
2) Rents, issues, and profits of SP
3) Property acquired in exchange for SP
Personal injury recovery against third-party tortfeasor
1) Injury before marriage: SP
2) Injury during marriage: CP
3) Injury after separation: SP, but community reimbursed for expenses paid because of injury
4) At divorce, CP damages awarded to injured spouse
Personal injury recovery against the other spouse
Always SP
Retirement pensions
CP to the extent right to benefits earned during marriage
1) "Time rule" used to apportion
2) Survives post-divorce death of either spouse
3) When pensionable spouse eligible to retire but does not, court may order payment to the non-employee spouse
Disability pay and worker's comp
1) To extent intended to replace marital earnings: CP
2) Intended to replace postdivorce earnings: SP
Severance pay
1) Resembles retirement plan: CP
2) Intended to sustain spouse until finds another job: SP
Stock options
1) Vests during marriage: CP
2) Vests after marriage: CP portioned determined by whether characterized as compensation for past services, future, or both.
Business and professional goodwill
1) Extent earned during marriage: CP
2) Methods used: market sales valuation and capitalization of past earnings
Education and training
Right reimbursement when:
1) Community funds used to pay for education or repay loans; and
2) Substantially enhances earning capacity of the party
Equitable defenses to education reimbursement
1) Community already benefited (more than 10 years have passed)
2) Community funded other spouse's education
3) Education reduced need for spousal support
Life insurance proceeds at death
1) Percentage of premiums paid by community: CP
2) Named beneficiary other than ex-spouse: named beneficiary receives one-half community property share
Life insurance policy at divorce
1) Whole life insurance current cash value: CP in proportion to premiums paid by community
2) Term life insurance: no value
General presumption
All property acquired during marriage is presumed to be CP
Form of title presumption
Title is name of one spouse alone, with knowledge and consent of other spouse, it is presumed to be SP unless clear and convincing evidence communicated agreement otherwise
Joint title presumption
Property acquired during marriage in joint title is presumed CP
Permissible methods of tracing
1) Exhaustion method
2) Direct tracing
Tracing funds in comingled accounts presumptions
1) CP funds used to pay family expenses
2) If no CP available, SP used for family expenses is a gift
Apportionment of business profits methods
1) Van Camp approach
2) Pereira approach
Pereira
1) Use if spouse's management was the primary cause of growth
2) Original SP investment + reasonable rate of return on that investment = SP
3) Remainder is CP
Van Camp
1) Use if the character of the business was the primary cause of growth
2) FMV of manager's services - family expenses = CP
3) Remainder is SP
Community payments that pay off purchase price of SP
Community gets proportional ownership interest to the extent that community mortgage payments reduce the principal debt
Community funds used to improve own SP
Community entitled to greater of:
1) Reimbursement of cost of improvement; or
2) Increase in value of realty
Spouse community funds used to improve other spouse's SP
1) Traditionally: gift
2) Modern trend: reimbursement
Character of credit or purchase money loan
1) Presumptively CP
2) SP if lender primarily relied on borrower's SP in granting the loan