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27 Cards in this Set

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What property is considered SP?
1. Owned prior to marriage
2. Acquired by gift, devise, or inheritance.
3. made SP by interspousal partition or exchange of property
4. Property purchased with SP
5. Tort recovery for personal injury
What property is CP?
1. Anything which is not SP
2. Presumably anything acquired during marriage which is not shown, by C&C evidence, to be SP
3. Income from SP
4. Tort recoveries for lost wages applicable to marital period
What is the character of income from a gift given between spouses?
The gift is SP because it is a gift, the intent that the spouses agreed income is also a gift is presumed.
When is the character of property determined?
Upon inception of title, except for:
1. Employee retirement benefits
2. Stock options
When is reimbursement called for?
When funds from one estate are used to benefit another (WSP for CP, e.g.)
What is the measure of a reimbursement claim?
The enhancement in value to the benefited estate attributable to burdened estate's contribution, offset by the burdened estates use and enjoyment of the benefit.
When is reimbursement not allowed?
1. Child support, alimony, maintenance
2. Necessaries and living expenses
3. Nominal contributions
4. Student loan payment
What is the character of property acquired in another state?
It is quasi-CP. The portion of the property acquired as SP in the other jurisdiction remains SP, but the remainder will be treated as CP.
What is the character of property acquired on credit during the marriage?
It is presumed CP, b/c of presumption that it was acquired on CP credit.
What is the effect of title designation on character of property bought with SP funds?
1. Title taken in other spouse's name: presumption of total gift
2. Title taken in both names: presumption of 1/2 gift
What is the effect of title designation upon character of property purchased with CP funds?
If both spouses participated in transaction and there is a clear recital of property characterization, that designation stands.
What is the character of property acquired by adverse possession?
Relates back to apparent inception of title. Therefore, will have character of color of title or character of actual AP if naked trespass.
How is the character of life insurance determined?
Inception of title.
How are defined benefit employee retirement benefits characterized?
They are compensation, so the portion earned during marital period is CP. The value is determined by multiplying the value at divorce by the fraction of employment years during marriage.
How are defined contribution employee retirement benefits characterized?
CP value = contribution made during marital period + interest and income from the account during that time
What is the CP interest in a spouse's SP close corp?
Reimbursement for the value of spouse's Time, Toil, Talent, & Experience reduced by the spouse's compensation.
How is the character of funds commingled in a bank account determined?
1. Tracing
2. CP out first rule (Lowest Intermediate Balance)
What is the character a gift given to both spouses jointly?
1/2 HSP & 1/2 WSP
What must a spouse show to prove eligibility for spousal maintenance?
1. Married at least 10 years unless other spouse committed family violence in last 2 years
2. spouse lacks sufficient property to provide for minimum reasonable needs
3. spuse can't support self because
-disabled
-custodian of disabled child
-lacks necessary employment skills
What is the maximum amount of spousal maintenance allowed?
1. Temporary support while divorce pending
2. Lesser of $2500 or 25% of gross income per month. Payments cannot continue for more than 36 months.
Award can only be modified downward.
What income from SP o&g interest is SP?
Only delay rentals.
What income from SP stock is CP?
Only cash dividends
What must be proven to set aside a premarital agreement?
1. Not voluntarily signed
2. unconscionable when made
How can the character of property be changed during the marriage?
SP-->CP: Written and signed conversion agreement
CP-->SP: Written and signed partition & exchange agreement
What is the effect of divorce on debts of the spouses?
1. CP debts should be divided at divorce
2. The liability on debts will not be altered or extinguished
3. Debt to that spouse may attach to that spouse's SP or SMCP and JMCP.
What is the effect of tort liability on marital property?
1. All CP is within reach of tort "creditor".
2. Tortfeasor's SP also w/in reach
What are a spouse's rights over CP?
1. Spouse may encumber or dispose of his SMCP as if it was SP
2. Spouse may encumber JMCP and may dispose of it but may be liable for fraud if it disposed of in a flagrantly improper way.