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44 Cards in this Set

  • Front
  • Back
Separate Property
- Property owned by either spouse before marriage
- Property acquired during marriage by gift, will, or inheritance
- Property acquired during marriage with expenditure of separate funds (“source” rule – separate ownership established by tracing)
- The rents, issue, and profits, thereof – the income and capital gain from separate property
Termination of Economic Community (test)
1. Permanent physical separation
2. Intent not to resume marital relations
Split on Divorce
Split on Divorce - exceptions
1. Family residence
2. Shares in closely held corp.
3. Pensions
Gift of CP
Only with other's written consent; else, gift is restored to the community
Prenups - requirements
1. In writing
2. Signed by both parties
Prenups - defenses
1. Not signed voluntarily
- Ind. legal counsel
- 7 days
- fully informed
2. Unconscionable
- no fair disclosure
- no adeq. knowledge of other party's financials
Marital Agreements - pre-1985 (oral?)
Oral mutations were permitted
Marital Agreements - post-1985 (requirements)
1. In writing
2. Singed by spouse whose interest adversely affected
3. Expressly states that a change in ownership is being made
Married Women's Special Presumptions (effect of taking title pre-1975) - Rule
When CP used to take written title in a married women's name (and didn't indicate CP or JT), then property is presumptively wife's SP
Married Women's Special presumption - 3 Situations
1. Title taken in W's name alone
2. Title in name of W and H before 1975 but not taken in JT or has "Husband and Wife"
3. Title in name of Wife and a 3rd party
Lucas - presumptions of taking title in "joint and equal" form
Held: Taking TILE in JOINT AND EQUAL form is inconsistent with preservation of a separate interest; SP contributor is presumed to have made gift to community
Lucas - on death
Gift presumption remains
- So no claim for reimbursement
Lucas - on divorce (anti-Lucas)
Reimbursement - for DIP
- Downpayment
- Improvements
- Principal
Installment Purchases before Marriage (also with life insurance)
Pro rata (by principal debt reduction)
H uses CP to improve own SP
Community has reimbursement claim for greater of:
1. Cost of improvement, or
2. Enhanced value
H uses CP to improve other spouse's SP
Split of authority
- No reimbursement b/c of gift presumption
- Community claim for reimbursement
Comingled bank accounts - B/P
Rule - burden of proof is on H to show each asset was acquired by separate funds
Comingled bank accounts - ways of satisfying B/P
1. Exhausation
2. Direct tracing
Pereira Method
Personal Skills and Efforts
- Technique - Pay interest on SP; rest is CP
Van Camp
Value Community Labor

CP = value of spouse's service at market rates - family expenses from community funds
- Balance = SP
Pro Rata =

Years of Service While Married
Total Years of Employment to Retirement
Pensions - disability?
Considered to be wage replacement
Pensions - severence pay?
Argue both ways
Stock Options
Pro rata =
Years from data option awarded to day economic community ended/
Years from date option awarded to day option becomes exercisable
Professional Good Will
Def - qualities that generate income beyond labor and reasonable return on cap.

Valuation - expert witness testimony or capitalization of excess earnings attributed to good will
Educational Expenses
Professaion degrees are NOT CP
- Reimbursemensts - community is entited to costs if education enhanced earning capacity
Education Expenses - reimbursement Defenses
1. Community has already benefited
2. Other spouse has received a CP-funded education
Tort Recovery
Spouse is tortfeasor - SP

3rd party is tortfeasor - CP
- On divorce - SP to injured spouse
- On death - CP
Tort Liablity
Rule - CP subject to liablity of either spouse

- Act benefiting community - CP, then SP
- Not benefiting - SP, then CP
Management Powers
Each spouse has equal management and control over all CP
Conveyance of Real Property
Joinder of both spouses required
- SoL - 1 year to recover if one spouse conveyed
- BFP - loses to community
Debt incurred before Marriage
CP can be reached
- Exception - earnings of nondebtor spouse held in separate account, not co-mingled
Medical Bill Debts
Other spouse's SP CAN be reached
- But can have reimbursement
- Separation - STILL reach (as long as economic community still going)
Quasi-CP - definition
If property acquired in another state that would have been considered CP if acquired in CA
QuasiCP - on divorce
same as CP
- Situs rule - same for real property in another state
QuasiCP - on death
Tangible prop - same as CP
Real Prop - foreign state's rules
QuasiCP - creditor claims
same as CP
Another state's CP
normal CP rules
Using CP funds to buy property out of state
On divorce - CP rules
On death - outside state rules apply
Common law marriage
not recognized by CA
Contract Law (living) arrangements
Contract law governs
Putative Spouse
Assets - quasi-marital property
On divorce - like CP
Unmarried cohabitants
HE keeps it all (unless contract living arrangement existed)