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Community Property Bar Mini Outline

Law Outlines > Community Property - Bar Exam Outlines

This is an extract of our Community Property Bar Mini document, which we sell as part of our Community Property - Bar Exam Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Community Property - Bar Exam Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

COMMUNITY PROPERTY MINI "California is a Community Property state. There is a Presumption that all property acquired during marriage is Community Property. Separate Property is property acquired before marriage or after permanent separation, or acquired by gift, bequest, devise or decent with rents issues and profits thereon. Classification of the property will depend on the property's source, presumptions and actions of the parties."

1. DATE OF MARRIAGE (4 Ways) a. Married - Capacity, License, Witnessed ceremony, Registered with the county recorder. i. CA recognizes a valid marriage from another jurisdiction (Except for same sex marriages) ii. Common Law marriages do NOT exist in CA

1. Exception - CA recognizes valid common law marriages from another state. iii. Same-sex marriages do NOT exist in CA

1. Exception - CA recognizes same sex marriages as valid that occurred after the In re Marriage Cases but before the effective date of Proposition 8. i.e. the same sex couples may claim CP rights as Spouses, not Domestic Partnerships b. Domestic Partnership - All laws pertaining to married persons apply to DP's i. Filing - Declaration of domestic partnership with the Secretary of State ii. Include - (1) Same Sex couples, or (2) Elderly who receive social security benefits. a. Quasi-Marital Property i. Quasi-marital property - property acquired during a putative marriage which would have been community property if the marriage was NOT void. (Treat as CP) ii. Putative Spouse - When a spouse has an objectively reasonable and good faith belief that they are married but through no fault of their own they are not. b. Marvin Actions - Courts will enforce express contracts unless the contract is founded on illegal sexual services. Courts will also look to the parties' conduct to determine an implied contract. i. Examples - Cohabitation with no marriage, Same sex Relationships.

2. DATE OF SEPERATION (DOS) - date when marriage is Irretrievably Broken. a. Irretrievably Broken - (1) Permanent physical separation, (2) Intent NOT to resume relationship

3. JURISDICTION OF THE COURT - The court has limited jurisdiction to determine what is CP and divide it EQUALLY (50/50). Court shall only confirm SP assets back to the SP holder. a. Continuing Jurisdiction - The court has continuing jurisdiction to award CP that was not previously adjudicated. (i.e. royalties from a book written during marriage)

4. EQUAL DIVISION REQUIREMENT - The general rule is that the court must divide each and every community asset equally, unless there is a written agreement to the contrary. a. Exceptions: i. Economic Circumstances Warrant - When property is NOT reasonably subject to division and there is a critical need to maintain the asset. (i.e. Family residence, Business, Pension) ii. Statutory Exceptions

1. Misappropriation - One spouse misappropriates CP either before or during divorce.

2. Educational Expenses - the community is entitled to reimbursement for educational expenses (tuition and books) IF: (1) The education substantially enhances your earning capacity. Defenses - (1) After 10 years presumption spouse already benefited (2) Spouse receives education (3) Reduced need of spousal support.

3. Tort Liability - The community is subject to the tort liability of either spouse. a. Act Benefiting Community - Liability is first satisfied from CP, then SPb. Act NOT benefiting Community - Liability is first satisfied from the tortfeasor spouses SP, then CP. The innocent spouse is NOT personally liable

4. Personal Injury Award - If there is a personal injury from the DOM to the DOS there is a presumption that all of award will be the CP but on divorce will be awarded to the injured spouse unless the interests of justice so require.

5. Negative Community - When community liabilities exceed assets, the relative ability of spouses to pay the debt is considered.

6. Child Support - Community may seek reimbursement if there were SP funds.

5. QUASI COMMUNITY PROPERTY - Property acquired in another state that would be CP if it was acquired in CA but it was not. California Courts treat QCP as CP and it is subject to the equal division rule. a. Death - The surviving spouse has a one-half interest in the decedent's quasi community property. Decedent has NO rights in the survivor's quasi community property.

6. DATE OF VALUATION - The court shall value assets and liabilities as close to the time of trial at practicable. Closely held businesses are valued at Separation. (i.e. spouse can't purposely lower value)

7. GIFTS - The court has the ability to determine if the gift is truly a gift or if it is given because of work preformed. If given for work performed than it is CP.

8. PRESUMPTIONS a. "Married Woman's Presumption" - BEFORE 1975, property that was acquired during marriage in a (1) married woman's name alone or in (2) her name and a 3rd party, is presumed to be her SP. i. Rebuttable Presumption - presumption is rebuttable against the wife, but not against a BFP. ii. Special Note - If title in the Husband and Wife's name, but not in joint tenancy form, and not as husband and wife, the wife will receive 1/2 SP, and the husband will receive 1/2 CP. b. Community Property Presumption - All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is CP. i. Rebuttable - Spouse may overcome presumption by tracing SP funds to purchase. ii. Commingled Funds - (1) Exhaustion (2) Direct Tracing - (i) SP funds available (ii) Intent c. Family Expense Presumption - Presumption that family expenses are paid with CP funds. d. Property Held in Joint Form - Property acquired by the parties during marriage in joint form, including property held in TIC, JT, or husband and wife, is presumed to be CP. i. Presumption may be rebutted by: (1) Express statement in title (2) Written agreement "California allows spouses to opt out of CP characterizations by agreement. Agreements made before marriage are governed by the Uniform Premarital Agreement Act. Agreements made during marriage to change the character of an asset are called Transmutations."

9. PREMARITAL AGREEMENTS (Uniform Premarital Agreement Act) a. Scope - Can waive nearly ANY rights and assets (i.e. spousal support and property rights) EXCEPT: (1) Child custody, visitation or support, (2) Violates public policy (Encourages divorce) b. Requirements - (1) In Writing and (2) Signed by both parties (Before 1992 can be oral) i. Exceptions to writing: (1) Promise is fully performed, or (2) Estoppel based on detrimental reliance. (Note - Marriage alone is not sufficient performance) c. Defenses (1) Not Signed Voluntarily (2) Unconscionable

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