CP rules 2.txt

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Anonymous
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228029
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CP rules 2.txt
Updated:
2013-07-24 03:54:39
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ca bar community property short rules
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ca bar community property short rules 07-24-2013
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  1. transmutation of the character of property?
    • agreement transmuting property is valid if:
    • 1) oral, if made before 1985
    • 2) written, if made after 1985
  2. 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
  3. 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
  4. 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
  5. 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
  6. 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]
  7. 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
  8. 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!
  9. for creditors' rights, how is Q-CP treated?
    like CP
  10. 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
  11. disability pay
    • treated as wage replacement
    • considered CP to the extent that disability pay is intended to replace marital earnings
    • after divorce, SP
  12. 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)
  13. prenuptial agreements, do they have to be in writing?
    yes
  14. if a person has not legally divorced, can they legally remarry?
    no. if they do remarry, then they might be putative spouses
  15. what is a putative spouse?
    • 1) good faith belief
    • 2) he is lawfully married
  16. 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
  17. 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)
  18. 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
  19. 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)
  20. 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)
  21. H&W take an asset in joint title, what characterization?
    depends on whether the property is divided at divorce or death
  22. 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.
  23. 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!]
  24. 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
  25. 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
  26. 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
  27. 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

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