Marital Property

Front 1

Characterization analysis

Back 1

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?

Front 2

Property acquired during marriage that is SP

Back 2

1) Gift, bequest, devise, or descent
2) Rents, issues, and profits of SP
3) Property acquired in exchange for SP

Front 3

Personal injury recovery against third-party tortfeasor

Back 3

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

Front 4

Personal injury recovery against the other spouse

Back 4

Always SP

Front 5

Retirement pensions

Back 5

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

Front 6

Disability pay and worker's comp

Back 6

1) To extent intended to replace marital earnings: CP
2) Intended to replace postdivorce earnings: SP

Front 7

Severance pay

Back 7

1) Resembles retirement plan: CP
2) Intended to sustain spouse until finds another job: SP

Front 8

Stock options

Back 8

1) Vests during marriage: CP
2) Vests after marriage: CP portioned determined by whether characterized as compensation for past services, future, or both.

Front 9

Business and professional goodwill

Back 9

1) Extent earned during marriage: CP
2) Methods used: market sales valuation and capitalization of past earnings

Front 10

Education and training

Back 10

Right reimbursement when:
1) Community funds used to pay for education or repay loans; and
2) Substantially enhances earning capacity of the party

Front 11

Equitable defenses to education reimbursement

Back 11

1) Community already benefited (more than 10 years have passed)
2) Community funded other spouse's education
3) Education reduced need for spousal support

Front 12

Life insurance proceeds at death

Back 12

1) Percentage of premiums paid by community: CP
2) Named beneficiary other than ex-spouse: named beneficiary receives one-half community property share

Front 13

Life insurance policy at divorce

Back 13

1) Whole life insurance current cash value: CP in proportion to premiums paid by community
2) Term life insurance: no value

Front 14

General presumption

Back 14

All property acquired during marriage is presumed to be CP

Front 15

Form of title presumption

Back 15

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

Front 16

Joint title presumption

Back 16

Property acquired during marriage in joint title is presumed CP

Front 17

Permissible methods of tracing

Back 17

1) Exhaustion method
2) Direct tracing

Front 18

Tracing funds in comingled accounts presumptions

Back 18

1) CP funds used to pay family expenses
2) If no CP available, SP used for family expenses is a gift

Front 19

Apportionment of business profits methods

Back 19

1) Van Camp approach
2) Pereira approach

Front 20

Pereira

Back 20

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

Front 21

Van Camp

Back 21

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

Front 22

Community payments that pay off purchase price of SP

Back 22

Community gets proportional ownership interest to the extent that community mortgage payments reduce the principal debt

Front 23

Community funds used to improve own SP

Back 23

Community entitled to greater of:
1) Reimbursement of cost of improvement; or
2) Increase in value of realty

Front 24

Spouse community funds used to improve other spouse's SP

Back 24

1) Traditionally: gift
2) Modern trend: reimbursement

Front 25

Character of credit or purchase money loan

Back 25

1) Presumptively CP
2) SP if lender primarily relied on borrower's SP in granting the loan