Non-Mbe Ca Community Property

Front 1

When there is a cause of action that arises during marriage, is the recovery CP?

Back 1

yes. but at divorce, community estate personal injury damages will be awarded entirely to the injured spouse.

Front 2

how does CA treat a retirement pension?

Back 2

CA treats retirmenet as deferred compensation. When the pensionable spouse is eligible to retire but chooses not to, divorce court can order a private employer to pay the nonemployee spouse her share of benefits as though teh worker had retired.

Front 3

how does CA treat disability pay and workers' compensation?

Back 3

to the extent that they are disability pay and workers comp intended to replace marital earnings, they are cp

to the extent that they are intended to replace separate postdivorce earnings, they are SP. it doesn't matter that the right to receive was earned during marriage.

Front 4

is goodwill treated as CP?

Back 4

yes if earned during marriage. court will value using two techniques: market sales valuation or capitalization of past excess earnings.

Front 5

are education and training treated as cp?

Back 5

no but there is an equitable right to reimbursement with interest to the community when: (i) community funds are used either to pay for education or training or to repay a loan related thereto, and (ii) education or training substantially enhances the earning capacity of the party.

Front 6

What are the equitable defenses to the reimbursement duty (for education and training)?

Back 6

1) community has already substantially benefitted from education or training (more than 10 years have passed since contributions and divorce);
2) the other spouse has received community-funded education; and
3) the need for spousal support is reduced as a result of education or training.

Front 7

how is life insurance treated at death?

Back 7

whole life insurance-->CP in proportion to percentage of premiums paid by community.

for term insurance proceeds, the character of the final premium is determinative.

Front 8

how is life insurance treated a divorce?

Back 8

to the extent a policy has a current cash value (whole life), that cash value is cp in proportion to community paid premiums. term insurance has no cash value.

Front 9

business good will--CP or SP?

Back 9

CP

Front 10

disability pay--CP or SP?

Back 10

CP to extent replacing marital earnings

Front 11

education--CP or SP?

Back 11

NOT CP (but right of reimbursement under certain circumstnaces)

Front 12

life insurance proceeds--CP or SP?

Back 12

apportioned CP (with exceptions)

Front 13

pensions in general--CP or SP?

Back 13

apportioned CP

Front 14

tort recovery against spouse

Back 14

SP

Front 15

separate property insurance proceeds--CP or SP?

Back 15

SP (but right of reimbursement for premiums paid from CP)

Front 16

severance pay--CP or SP?

Back 16

generally treated like disability pay (CP to extent replacing marital earnings)

Front 17

stock options--CP or SP?

Back 17

apportioned CP

Front 18

tort recover against third party--CP or SP?

Back 18

CP if cause of action arose during marriage (note divorce exception)

Front 19

does a prenup require consideration?

Back 19

no.

Front 20

what are the requirements for a valid prenup?

Back 20

1) must be signed by both parties but an oral oen can be enforced when exec propmis was fully executed or promisor is estopped to assert SOF
2) premarital agreements may regulate property rights and support obligations
3) circumstances that render premarital agreements unenforceable (unconscionable when executed and burdened party did not have adequate disclosure of other party's wealth)
4) waiver of death rights are enforceable.

Front 21

What kinds of agreements did CA courts recognize regarding transmutations pre 1985? post 1985?

Back 21

Pre jan 1, 1985--the courts recognized explicit oral agreements and agreements and donative acts inferred from one party or both parties' behaviors.

post january 1, 1985, there must haveen a signed writing accepted by spouse who was adversely affected by the transmutaiton.

Front 22

What is the presumption of undue influence?

Back 22

There is a rebuttable presumption of undue influence when one spouse gains an advantage over the other in a property transaction.

Front 23

what duty is owed to the confidential relationship of spouses?

Back 23

a duty of the highest good faith and fair dealing on each spouse.

Front 24

in what ways can a married couple jointly hold property?

Back 24

1) in a joint tenancy
2) tenancy in common
3) as community property or
4) as "community property with right of survivorship"

Front 25

what is a joint tenancy?

Back 25

H and W each own an undivided one-half interest and the survivor of the two automatically becomes the owner of the decedent's interest as well as his own.

Need explicit language "to H and W as joint tenants"

Front 26

what is a tenancy in common?

Back 26

tenants in common possess equal proportional ownership interests in the assset. There is no right of survivorship.

Front 27

what is the nature of the asset when it is held in community property?

Back 27

each spouse owns an undivided one-half interest and neither spouse can partition the whole.

Front 28

What are the presumptions regarding how property is held by a married couple pre 1975?

Back 28

Presumed to be tenancy in common. post 1975 presumption is community property. but even before 1975, describing the grantees as husband and wife created CP title.

Front 29

what is the nature of community property with right of suvivorship?

Back 29

it has all attributes of ordinary community property but at the death of a spouse, the decedent's half-interest passes to the surviving spouse, just as a joint tenancy right of survivorship does.

Front 30

what is the married woman's special presumption?

Back 30

when written title to property was placed in a married woman's name before 1975, it was presumptively woman's SP.
If property was taken in tenancy in common by persons who were in fact married, W took her one-half interest as her SP and H took his one-half interest as CP. JT and CP title were deemed to avoid the married woman's presumption.

can rebut the presumption by husband (not BFP) showing that he did not intend to make a gift to W when he put it in her name.

Front 31

Where spouses take title in joint and equal form but contribute disproportionately to purchase price: what is the significance of the Lucas resolution?

Back 31

the 1980 Lucas case held that the act of taking title in a joint and equal form is inconsistent with preservation of separate interests.

*The SP contributor is presumped to have made a gift.*

The Lucas gift presumption remains entirely operative when a marriage ends in death.

Front 32

if jointly titled property is CP, at divorce what result?

Back 32

at divorce the SP contributions to the acquisition will be reimbursed to the SP contributor without interest.

Front 33

What are the presumptions for commingled funds?

Back 33

1) available community funds are presumed to have been used to pay for family expenses
2) absent evidence of a reimbursement agreement, a gift is presumed when separate funds are used to pay family expenses.

Front 34

What are two permissible tracing methods?

Back 34

1) exhaustion method--at time asset was purchased, community funds in the account had been exhausted by payment of family expenses so asset must have been purchased by separate funds.
2) direct tracing--at the time the asset was purchased, there were separate funds available and the proponent intended to use those separate funds to purchase an SP asset.

Front 35

Can an SP proponent shw that total family expenses exceeded total community income and conclude that all remaining funds and assets purchased from commingled account were SP?

Back 35

no. this is recapitulative accounting which is not allowed.

Front 36

What is the consequence of a failure to trace?

Back 36

the entire commingled account and assets purchased with account are CP.

Front 37

Under what circumstancs would you use van camp or pereira accounting?

Back 37

when communty funds or labor enhance the value of separate property.

pereira should generally be used when the management of the spouse was teh primary cause of growth or productivity of separate business.

van camp should be used when the character of the separate business is largely responsible for its growth or productivity.

Front 38

what is van camp accounting?

Back 38

the manager's services are valued at the going market salary. the amount of family expenses that were paid form business earnings are then subtracted. the remainder if any represents the community portion of the business and the rest of the business is SP (pro-SP)

value of H's services (salary per year) - family expenses paid from business earnings (expenses per year) = CP. The remaining is SP.

Front 39

what is pereira accounting?

Back 39

SP consists of teh manager's separate capital plus a fair rate return thereon (10% principle x 10 years). The rest is CP (pro-CP)

reasonable rate of return (10%/yr) + original principal = H's SP interest. The rest is CP.

Front 40

When a spouse uses community funds to improve other spouse's separate property, is there a gift presumption?

Back 40

yes

Front 41

when community funds are used to improve a spouse's own SP, is a gift presumed?

Back 41

no. community can get reimbursed or the amount by which the improvement increased the value of the realty, whichever is greater.

Front 42

Is credit acquired by one spouse during marriage presumptively community credit?

Back 42

yes. to demonstrate the loan proceeds or credit purchases are his SP, the borrowing spouse may demonstrate that the lender primarily relied on borrower's SP in granting loan or extending credit.

Front 43

When liabilities exceed assets, can an unequal division be made?

Back 43

yes. they must take into account the parties' relative ability to pay the debts.

Front 44

Are unpaid education debts separate property?

Back 44

yes.

Front 45

when one spouse receives community estate personal injury damages, what do each spouse get?

Back 45

a community estate personal injury recovery is awarded entirely to the injured spouse unless the interests of justice require otherwise. in no even will injured spouse receive less than one half.

Front 46

what is the time of valuation of assets and liabilities for purposes of divorce?

Back 46

as near to the time of trial as practicable. a spouse managed business or professional practice should be valued at the time of permanent separation rather than trial.

Front 47

are transfers of property between spouses pursuant to divorce taxable?

Back 47

no

Front 48

what are the tax consequences of sale of community assets to third parties?

Back 48

the court must apportion direct tax liability equally to both spouses.

Front 49

Can a decree be set aside when there has been extrinsic (culpable behavior of adversary) fraud or extrinsic mistake (excusable neglect of claimant)?

Back 49

yes.

Front 50

Can a decree be set aside for instrinsic fraud (error that the claimant with exercise of due diligence could have guarded against)?

Back 50

No relief has been denied. however recent legislation provides that uncontested judgments may be set aside within one year of grounds of mutual or unilateral mistake.

Front 51

What happens when a spouse makes an unauthorized intervivos gift of CP?

Back 51

one spouse cannot make an inter vivos gift of CP without written consent of the other spouse. at the death of the donor spouse, the unauthorized inter vivos gift if it has not been voided by the nonconsenting spouse during the donor spouse's lifetime, is treated as a valid testamentary transfer of donor's one-half interest in cp.

Front 52

how is an intestate decedent's SP distributed?

Back 52

an intestate decedent's SP passes in whole or in part to the surviving spouse according to three statutory formulas
1) all to the suriving spouse when decedent has left no surviving issue, parent, sibling, issue of deceased siblings;
2) one half to the surviving spouse when the decedent leaves only one child or issue of a deceased child, or no issue, but a parent or parents, or their issue, or issue of either of them; or
3) one third to the surviving spouse when the decedent leaves more than one living child, or one living child and issue of one or more deceased children, or issue of two or more deceased children.

Front 53

What is the ancestral property intestate succession statute?

Back 53

When a surviving spouse dies intestate adn leaves neither a living spouse (no remarriage) nor issue, realty derived from her predeceased spouse is sent back to his family line provided the predeceased spouse died not more than 15 years before decedent.

A similar rule applies to personalty worth $10,000 or more when the predeceased spouse died not more than five years before decedent.

Front 54

How is quasi-community property treated at death?

Back 54

the survivor has a one-half interest in decedent's quasi-CP. decedent has no rights in the survivor's quasi-CP

Front 55

how is quasiCP treated at divorce?

Back 55

at divorce, QCP is treated as CP even if one spouse is not domiciled in CA.

Front 56

how is property that was acquired when spouse was domiciled in another CP jx treated?

Back 56

as CA CP, not as QCP.

Front 57

Can a survivor restore illusory transfers of QCP?

Back 57

yes. if decedent who died domiciled in CA transferred his QCP to a third party for elss than substantial consideration and without his surviving spouse's consent, the suriving spouse may compel the third part to restore one half the property to decedent's estate if at the time of death decedent reserved rights to the property:
1) right to income
2) power to revoke, consume, invade or dispose of principal for decedent's own benefit or
3) right of survivorship.

Front 58

How is QCP treated for purposes of debt collection?

Back 58

A creditor can reach one spouse's QCP to satisfy a debt incurred by the other spouse. This is of questionable constitutionality. With the exception of debt collection, QCP is still treated as the acquiring spouse's SP during marriage (only CP for purposes of death or divorce).

Front 59

how do CA courts deal with out of state community and quasi-community realty?

Back 59

at divorce:
1) divide all CP and QCP in such a way as not to alter the nature of interests held in out of state property; or
2) if this isn't possible require parties to execute whatever conveyances are necessary or award to the party who would have benefitted from the conveyance the money value of her interest.

At death:
out of state realty is usually probated in ancillary administration in teh state in which the realty is located according to the laws of that jurisdiction.

Front 60

How do CA courts deal with CA land owned by out of state decedents?

Back 60

CA applies the law of the decedent's domicile to disposition of his CA realty.

Front 61

What is a putative spouse?

Back 61

A putative spouse is not lawfully married but has a good faith belief based on objectively reasonable grounds that she is lawfully married. Once she learns that her marriage is invalid she no longer accrues putative spouse property rights.

When only one partner is a good faith putative spouse, it is not clear whether the good faith spouse may make any claim to quasi-marital property accumulated by the good faith spouse. However when a claim to putative spouse status could possibly fail because the claimant knew that her marriage was invalid, the claimant may still prevail on the basis of ESTOPPEL if other spouse knew but continued to enjoy benefits of cohabitation.

If decedent has both lawful and putative spouse, courts have equitably divided the decedent's estate between them.

Front 62

How is QCP classified for purposes of management and control?

Back 62

as SP

Front 63

can either spouse acting alone buy, sell, spend or encumber all CP?

Back 63

yes. each spouse has equal management and control of CP. however each spouse only has testamentary control over his one-half interest in CP.

Front 64

with regard to real property must both spouses join in executing any instrument by which community real property is sold, conveyed or lease for more than one year?

Back 64

yes.

Front 65

what is a spouse's remedy when the other spouse misrepresents his marital status to an innocent transferee and CP is titled in one name only?

Back 65

the nonconsenting spouse has one year in which to bring an action to void the transfer. transfers to good faith purchasers are presumed valid.
the nonconsenting spouse may overcome the presumption by demonstrating that she did not in any way consent to or participate in the transfer. She may then void the conveyance and must return the transferee's purchase price. The nonconsenting spouse also may entirely void any security interest in CP granted to the creditor by the other spouse (except for a family law attorney's real property lien).

Front 66

is a bank account held in one person's name CP?

Back 66

a bank account held in the name of a married person is held for the exclusive benefit of that person and is free from the control or lien of any other person except a creditor.

Front 67

What is the business exception to the rule that either spouse may act alone?

Back 67

a spouse who is operating a business or an itnerest in a business that is all or substantially all community personal property has primary (rather than sole) management and control of the business or interest. The managing spouse may act alone in all transactions but must give prior written notice to the other spouse of any sale, lease or exchagen of all or substantially all personal property used in the operation of the business. If no notice, the nonmanaging spouse has a remedy only if managing spouse has substantially impaired her one half interest. nonmanaging spouse cannot void the transfer.

Front 68

what is the personal belongings exception to the rule that either spouse may act alone?

Back 68

the dwelling or CP household furnisings or clothing of a spouse or minor children may not be transferred without written consent of other spouse. the nonconsenting spouse can void the transfer during or after marriage and need not return the transferee's purchase price.

Front 69

what is the duty of the managing spouse?

Back 69

the managing spouse must give a full accounting to the nonmanager when requested and must secure the consent of the nonmanager before committing certain acts, such as conveying or encumbering the family dwelling or furnishings.
pre 2003 transactions deliberate disposition was actionable, but mere incompetence was not. post 2003 grossly negligent or reckless conduct breaches a spouse's fiduciary duty.

Front 70

when does a breach of the duty of the managing spouse occur?

Back 70

when there is a breach of fiduciary duty that results in substantial impairment of the nonmanager's interest.
statute of limitations: actions must be commenced within 3 years after date nonmanager had actual notice of act of which she complains. action can be brought at death or divorce regardless of 3 year limit.

spouse can also be criminally liable for intentionally damaging community property or separate property of other spouse.

Front 71

what are the creditor's rights in regards to quasi-CP?

Back 71

a creditor may reach any property over which teh debtor has

Front 72

how is child support and spousal support from prior relationships treated?

Back 72

they are treated as debts incurred before marriage. in all other cases, a debt is incurred at the time the obligation arises.

Front 73

what marital property can be reached by creditors?

Back 73

all CP and the debtor's SP are liable for debts incurred before or during marriage. the other spouse's SP is not liable.

CP earnigns of the nondebtor spouse are not liable for the debtor's premarital obligation only as long as those earnings are held in a deposit account in which the debtor spouse has no right of withdrawal.
when one spouse occurs a debt for necessaries during marriage, the other spouse is personally liable for the debt.
personal liability still remains even after parties have separated (but pre divorce)

Front 74

is a person liable for her spouse's torts?

Back 74

no unless she would be liable for them even if the marriage did not exist. if liability occurred while the married person was performing an activity for the community's benefit, liability shall first be satisfied from CP and second from SP of married person. if not, go to SP first then CP.

Front 75

What are the creditor's rights at divorce?

Back 75

each spouse is personally liable for all debts incurred whether or not the court assigned the debt for payment by one spouse.

Front 76

what are the creditor's rights at death of spouse?

Back 76

when property passes through probate, the probate code requires contribution from the CP and SP estates of both sposues that are liable for the debt in proportion to the value of the assets.

When not through probate, the set aside law controls unless they elect formal distribtuion.
set aside law-->the suriving spouse is personally liable for debts chargeable against CP, QCP and decedent's SP that pass to suriving spouse without administration.

Front 77

how is ERISA classified?

Back 77

permits a CP distribution upon divorce of an ERISA regulated pension earned during marriage. but the law's anti-assignment provisions prohibit testamentary transfer by a nondivorced deceased spouse of her CP interest in her surviving spouse's pension.

Front 78

how are federal military and veterans administration disability benefits after permanent separate classified?

Back 78

SP.

Front 79

armed forces life insurance proceeds-->SP or CP?

Back 79

SP

Front 80

civil service pension-->SP or CP?

Back 80

apportioned CP

Front 81

disability benefits-->SP or CP?

Back 81

SP

Front 82

foreign services pension-->SP or CP?

Back 82

apportioned CP

Front 83

military retirement benefits-->SP or CP?

Back 83

apportioned CP

Front 84

railroad retirement benefits?-->SP or CP?

Back 84

social security type are SP; supplemental are apportioned CP

Front 85

social security benefits-->SP or CP?

Back 85

SP

Front 86

us savings bonds-->SP or CP?

Back 86

SP (unless fraud involved)