The flashcards below were created by user
Anonymous
on FreezingBlue Flashcards.
-
transmutation of the character of property?
- agreement transmuting property is valid if:
- 1) oral, if made before 1985
- 2) written, if made after 1985
-
van camp accounting?
- principal factor in increase in value of SP is NOT husband's labor
- 1) community receives a fair salary for the spouse's labor
- 2) spouse's SP receives the balance
-
pereira accounting?
- principal factor in increase in value of SP is husband's labor
- 1) spouse's SP receives initial investment + a reasonable return on original investment
- 2) community recieves the balance
-
life insurance policy paid for using CP?
- If CP used to pay the premiums on life insurance policy, proceeds are CP regardless of the named beneficiary.
- 1) named beneficiary gets the deceased spouse's 1/2 CP interest in the property as a testamentary disposition
- 2) surviving spouse takes her 1/2 CP interest
- *if policy was paid for using CP and SP, then court will apply the time rule to apportion the CP interest
-
Gift from CP to a third party by one spouse?
- cannot be made without written consent of the other spouse
- non-consenting spouse may recover her 1/2 interest
-
the order in which SP and CP is used to satisfy a tort creditor's judgment?
- if tort was committed:
- 1) while spouse was engaged in an activity benefiting the community: CP first, then tortfeasor spouse's SP [but not the other spouse's SP!]
- 2) while spouse was engaged in an activity benfitting his SP: SP first, then CP [also not the other spouse's SP]
-
what order for creditors to reach for debtor's premarital debts/obligations (child support, spousal support)?
- 1) debtor spouse's SP
- 2) non-debtor spouse's CP** [statutory right of reimbursement, if debtor spouse's SP was available to use]
- 3) cannot reach non-debtor spouse's SP
- **exception: CP earnings of the non-debtor spouse are not liable if those earnings are
- A) held in a deposit account in which the debtor spouse has no right of withdrawal
- B) earnings are not commingled with any other CP
-
if SP is used to pay family expenses?
- argue it's a gift!
- but if a gift is a transmutation (from SP to CP), then t must be in writing after 1985!
-
for creditors' rights, how is Q-CP treated?
like CP
-
to satisfy a debtor spouse's debt, can a creditor reach the non-debtor spouse's property?
- generally NO, cannot reach the non-debtor's SP
- exception: spouse incurs a debt for necessaries of life (food, clothing, shelter, medical expenses) during marriage
- non-debtor is personally liable for the debt because of duty to support, therefore his SP may be reached to satisfy the debt
-
disability pay
- treated as wage replacement
- considered CP to the extent that disability pay is intended to replace marital earnings
- after divorce, SP
-
retirement pensions
- CP, to the extent that the right to benefits was earned during marriage.
- (use the time rule to determine how much of the pension is attributable to CP labor and how much attributable to SP labor)
-
prenuptial agreements, do they have to be in writing?
yes
-
if a person has not legally divorced, can they legally remarry?
no. if they do remarry, then they might be putative spouses
-
what is a putative spouse?
- 1) good faith belief
- 2) he is lawfully married
-
How does CA law treat putative spouses?
- 1) Putative spouse is treated as a legal spouse, and
- 2) takes according to quasi-marital property (QMP) principles
-
married woman's special presumption?
- 1) property acquired prior to 1975
- 2) by a married woman in her name only
- 3) presumed to be her SP
- *H can rebut the presumption: by...
- a) does not apply to assets where some intent other than a gift is shown
- b) or where the woman controlled how title to the asset was taken (H didn't know)
-
management and control of CP during marriage?
- general rule: both spouses have equal management and control of all CP
- exception:
- 1) real property
- 2) personal belongings (clothing and furniture)
- 3) spouse managing a business is given primary management and control
- 4) bank account in name of 1 spouse alone
-
CP used to improve the SP of a spouse?
- CP does not obtain a pro-rata ownership interest, but may be entitled to reimbursement
- 1) spouse uses CP to benefit the SP of the other spouse, gift is presumed
- 2) spouse uses CP to benefit spouse's own SP, CP entitled to reimbursement (cost of improvement, or increase in the value of SP)
-
property acquired with CP and SP?
- 1) check whether a title presumption applies
- 2) CP and SP interests are determined by apportining their respective contributions (pro rata)
-
H&W take an asset in joint title, what characterization?
depends on whether the property is divided at divorce or death
-
H&W take an asset in joint title, what characterization upon death?
- Under Lucas, if title taken in joint and equal form [not joint tenancy!], presumptively CP [with no claim for reimbursement]
- Any SP used to acquire the asset is presumed to be a gift of the SP unless there is an agreement to the contrary.
-
H&W take an asset in joint title, what characterization upon divorce?
- Anti-Lucas statutes apply
- 1) if title taken in joint and equal form after 1984, presumptively CP
- 2) legislation was revised so that any joint form after 1987, presumptively CP
- 3) however: SP is entitled to reimbursement for its contributions to the purchase price of a jointly titled asset
- purchase price = DIP [downpayments, improvements, principal]
- 4) jointly titled assets acquired before 1984 are governed by Lucas [no reimbursement!]
-
education and training acquired during marriage?
- education itself is not CP
- Upon divorce, there is a right to reimbursement if:
- 1) CP funds were used to pay for education, and
- 2) education substantially enhances the earning capacity of the spouse
- Defenses:
- 1) reimbursement may be reduced if the community has already substantially benefitted from the education
- 2) rebuttable presumption: 10 years has elapsed between the contributions and divorce, the community already benefitted.
- 3) reimbursement may be reduced if the education that the spouse received lessens the need for spousal support
-
personal injury settlement from an accident that occurred during marriage?
- proceeds are CP
- exception: if the injury was inflicted by the spouse, the settlement is the injured spouse's SP
-
are bonds purchased with wage earnings CP or SP?
- SP
- federal preemption law holds that the designated bondholder is the sole and absolute owner of the bond
-
H&W have title in joint tenancy, can judgment creditor attach against it?
- Property held by spouses in joint tenancy is presumptively CP for purposes of divorce.
- However, for purposes of satisfying a judgment creditor, it is still titled in joint tenancy!
- Thus, H & W continue to each own an undivided 1/2 interest in SP. Creditor can only reach if he has the right to reach the spouse's SP
|
|