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Is there a valid marriage?
v FC § 300 A valid California Marriage requires authentication, issuance of a license, and solemnization. v Validly registered California Domestic partners have the same rights and obligations as that of a valid California Marriage. v FC § 308 California recognizes all valid foreign marriages.
  • California does not have Common Law Marriage
v FC § 2251 Absent a valid California marriage, courts may declare the parties to have the status of a putative spouse if there is an objectively reasonable good faith belief in the validity of their marriage.

FC § 125 Quasi Community Property
a) Quasi-community property" means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:
By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
v FC § 912 Quasi-community property; treatment: Quasi-community property is liable to the same extent, and shall be treated the same in all other respects, as community property.


What is the nature and characterization of the (  ) property?
v Non-Married Purchases: Property purchased together by a non non-married couples, apply nothing more than contract law.
  • Marvin v Marvin: the courts should enforce express and implied contracts between non-marital partners except to the extent that they are explicitly founded on the consideration of meretricious sexual service and should also employ the doctrine of quantum meruit, or equitable remedies such as….
  • Contractual Privity: Non marital partners are not entitled to division of community property, but the courts will instead enforce expressed and implied agreements between the parties so long as the agreements do not rest on an unlawful consideration.
  (FC § 770 Separate property of a married person includes all of the following)
A)
  1. All the property owned by the person before marriage.
  2. All property acquired by the person after marriage by gift, bequest, devise or descent.
  3. The rents, issues, and profits of the property described in these sections
B.) A married person may, without the consent of the person’s spouse, convey the person’s separate property.
  (FC § 760 Community property defined (Presumption))
All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is presumptively community property. This evidentiary presumption is a shifting of the burden of proof and is rebuttable by Preponderance of evidence (51%) in a civil case.


(FC § 771 The earnings and accumulations)
The earnings and accumulations of a spouse while living separate and apart from the other spouse, are the separate property of the spouse.


(FC § 772 After entry of judgment of legal separation)
After entry of judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations.


1) Did the agreement between ( ) and (  ) alter the character of the (  ) property?........

2)  Is the prematerial agreement enforceable
?
1) FC § 1610: Definitions:
  • “Premarital agreement” is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
2) Enforceablity: FC § 1611: A premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration. v FC § 1612 Subject Matter of Premarital Agreements: Rights and obligations of each party in any of the property of either or both of them in the event of separation, divorce, death, or the occurrence or nonoccurrence of any other event, not in violation of public policy. Right of child support may not be adversely affected by a premarital agreement Any provision regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the agreement is sought was not represented by independent counsel at the time of signing, or if the provision is unconscionable at the time of enforcement. v FC § 1613 Effective date of Agreement Premarital agreement effective upon marriage v FC § 1615 C) no premarital agreement if not “voluntarily” if
  • lacked legal council at the time of signing or at the time of signing expressly waived council in a seperate writing
  • The prospective spouse must be free of duress, fraud, undue influence, and/or lack of capacity to enter into the agreement.
  • Premartial agreement may not promote divorce (include terms that provide a spouse with a positive incentive to seek a divorce)
FC § 1500 A premarital agreement requires a voluntary and knowingly intelligent waiver of rights signed by both parties (7 days to think about wavier prior to singing the agreement); however will not be enforceable if it is promotive of the dissolution. Any provision that is promotive of dissolution is unenforceable because it is unconscionable and violates public policy


Does (Party's) Act of (  ) constitute a valid transmutation?
v FC § 852 A valid transmutation requires a writing expressing intent to transfer the property by the adversely affected party and accepted by the other.
  • A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. (Know this Verbatum).
  • Sub section C of this code excludes gifts of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature when it is not of SUBSTANTIAL VALUE.
A transmutation of real property is not effective as to third parties without notice to the other spouse unless recorded. This section does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation shall continue to apply.


What is the nature and characterization of the seperate bank account now that community funds have been added?
Whenever separate and community property are deposited into a bank account, the account becomes commingled and is presumptively community property. This presumption may be rebutted by:

Direct Tracing
(3 elements)
  1. Separate property funds were available at time of acquisition
  2. Separate properties (funds) were actually withdrawn
  3. Done with intent to acquire separate property
Family Expense Exhaustion Doctrine states that any withdrawal from a commingled bank account that is used for family expenses first comes out of the community property portion of the commingled bank account. 1) Seperate property funds are deemed to be used for family expenses when community funds are exhausted. 2) When separate property funds are used to pay for family expenses the separate estate has no right to reimbursement unless the parties have agreed to reimbursement
En Re Mix: When ever separate property is used to pay community property expenses, it is presumptively a gift.


What is the nature and characterization of increased profits of the seperate property purchased by seperate property funds?
FC § 770: Separate property of a married person includes the rents, issues, and profits from the spouses separate property.


What is the nature and characterization of the (   ) property when marriage is not valid?
The property acquired during the union which would have been community property or quasi community property if the union had not been void or voidable the property is known as "quasi marital" and would be considered putative spouses if they had a good faith belief in the validity of the marriage.

As putative spouses any property that would have been community property if they had been validly married will be treated as if it was community property.


(property held in joint form)
v FC § 2581 Evidentiary Presumption:  Property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property is presumed to be community property.   This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.

(b) Proof that the parties have made a written agreement that the property is separate property.


Can (party) be reimbursed for her seperate property contributions to a community property asset?
v FC § 2640 Separate property contributions in the acquisition of community property [including, down payments, improvements, and debt reduction] are all reimbursable dollar for dollar so long as its traced to a Separate Property source.  
  • This does not include taxes, interest, or insurance.
[Unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, or unless there has been a valid transmutation in writing, the party shall be reimbursed for the party's contributions]


How do we determine the seperate and community property portion of the enhanced value of the seperate property business by virtue of expendature of time, skill, and effort?
1) Indetify seperate property business
2) there must then be an expenditure of time, skill, and effort of active management in the business which is a CP asset
Up until the point of the expenditure of time skill and effort, the increased profits will remain separate property. v The courts have developed two approaches to resolve this area. 1) Van Camp Approach: Courts value the managing spouse’s services at the going market salary for such services, and then subtract the amount of family expenses paid from business earnings. (multiplied by the number of years of active management is COMMUNITY PROPERTY). The remainder, if any, represents the community property portion of the business. The rest of the business is seperate property.
Valued Services – Family Expenses) x (Years of active management) = Community Property......Remainder of the increased profits, if any, is separate property

Pereira Approach
: Courts impute a fair rate of return of the managing spouses Separate Property investment multiplied by the number of years of active management for the total separate property. The remainder of the increased profits if any is community.
(Fair Rate of Return x SP investment at the time of active management) x # of years and that = SP (Total Value at the time of dissolution – all SP) = Community


Which is the most appropriate approach for the courts to use?
v Van Camp should be used when the character of the separate property business is the primary cause for its growth. v Pereira should be used when management by the spouse was the primary cause of the growth of the separate property business.


How do we determine the seperate and community property portion of the seperate property reality by virtue of community property payments?
When community funds are used to make payments of funds of one spouse’s separate property during marriage the rule developed through decisions in California gives to the community a pro tanto community property in such property in the ratio that the payment that the purchase price with community funds bear to payment made with separate funds
Step 1: Down Payment + (Mortgage Community Property Debt Reduction) = Separate Property Contribution Step 2: Separate Property Contribution (Divided by) Total Purchase Price = % of Sep. Pro. Ratio
Step 3:   (% of Sep. Pro. Ratio  x  Appreciation During Marriage) (Appreciation before Marriage) (SP Down Payment) +            (SP Mortgage Reduction) ---------------------------------------------------- Separate Property
Step 4: Then: $ Value of the House – ($ owed to bank) – Separate Property = Community Property


What is the nature and characterization of the community estate personal injury damage recovery?
FC § 2603: (a) "Community estate personal injury damages" but is not separate property as described in Section 781, unless the money or other property has been commingled with other assets of the community estate.



What is the nature and characteristic of community property that one spouse gifted to charity?
FC 1100
  1. Either spouse has the management and control of the community personal property, whether acquired…..
  2. A spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse.
    1. This subdivision does not apply to gifts mutually given by both spouses to third parties and to gifts given by one spouse to the other spouse.
  3. D. A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse.


What is the nature and characterization of the money spent for ("a community purpose or venture")
This expenditure was for a community property purpose, therefore not reimbursable.


When are education expenses reimbursable?
FC § 2641:  Community contributions to education or training "Community contributions to education or training" as used in this section means payments made with community or quasi-community property for education or training or for the repayment of a loan incurred for education or training, whether the payments were made while the parties were resident in this state or resident outside this state.
  1. (b) The community shall be reimbursed for community contributions to education or training of a party that substantially enhances the earning capacity of the party.
  2. (b)  A loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division pursuant to this division but shall be assigned for payment by the party
  3. The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made.


Is there an equitable defense to reimbursement?
When the community has substantially benefited from the education there is a rebuttable presumption, affecting the burden of proof, that ….
  • The community has not substantially benefited from community contributions to the education or training made less than 10 years
  • The community has substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding


Does the act of making a bet/gambling fall outside the scope use and management of community property assets?
FC § 721: Contracts w/ each other and 3rd parties; fiduciary relationships (a)   Subject to (b) either husband or wife may enter into any transaction w/ the other, or w/ any other person, respecting property, which either might if unmarried. (b)  (KNOW THIS RULE IN VERBATUM) Husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.


What rights do 3rd party creditors have against a spouse who causes a tortious act?
v FC § 1000 Liability for injury or damage caused by spouse; property subject to satisfaction of liability; satisfaction out of insurance proceeds; limitation on exercise of reimbursement right
  1. A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefore if the marriage did not exist.
  2. The liability of a married person for death or injury to person or property shall be satisfied as follows:
  • If the liability occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person.
  • If the liability occurred out of an activity NOT for the benefit of the community, the liability shall first be satisfied from the separate property of the married person and second from the community estate.
Separate Property of the tortfeasor must reimburse the community.


Is "party" entitled to get back their seperate party?
v FC § 1100 Community personal property; management and control; restrictions on disposition
  1. Either spouse has the management and control of the community personal property
  2. A spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse.
  • This subdivision does not apply to gifts mutually given by both spouses to third parties and to gifts given by one spouse to the other spouse.
  1. A. A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse. The non consenting spouse may void such a transfer in its entirety at any point during or after the marriage, and need not return the transferees consideration.
B. Fiduciary Duty: Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships.


What is the nature and characteristic of borrowed funds by one spouse?
v In Re Marriage of Guinius: Borrowed funds during marriage are presumed to be community property.
  • Rebutted by showing the lender relied solely on the separate property of the borrower.


What is the nature and characterization of the property not disclosed / or value of an asset in the divorce proceeding?
Varner: (Value) A judgment of dissolution, based on a stipulation of the parties dividing the community property, will be set aside when one party fails to disclose to the other party the extent of the value of the property at the time that party signed the stipulation. Rossi: (In a marital dissolution proceeding, a spouse may be awarded 100% of any asset which the other spouse fails to disclose or transfers in breach of her marital fiduciary duties.


At what time does the court appraise a value of a business or property?
FC § 2552: For the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties, the court shall value the assets and liabilities as near as practicable to the time of trial.


How shall the court distibute the community property?
Equitable Distribution Doctrine (Martial Property): Permits courts to award property of one spouse to the other spouse in the context of divorce or dissolution. FC § 751: Each spouse has a ½ undivided interest in community property. FC § 2552: Valuation date for assets and liabilities (a)   For the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties, the court shall value the assets and liabilities as near as practicable to the time of trial, EXCEPT (b)  The court upon showing of good cause may value all or any portion of the assets and liabilities at a date after separation and before trial [to accomplish an equal division of the community estate of the parties in an equitable manner].


Date of seperation
Living separate and have no present intention of resuming the martial relations and taking up life together under the same roof. Date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the martial relationship. -       It is an economic break in the relationship. -       The definition has NOT been codified in statute.
  • Thus, the definition has been open to judicial interpretation.
  • Living apart physically: is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.


Credit Card debt
FC § 903 (a): Incurred by one spouse before marriage
  1. SP of K spouse is liable
  2. SP of Non-K spouse is not liable
  3. CP is liable, except that earnings of Non-K spouse are not liable if they are held un-commingled in a deposit account (this only applies to this situation or these set of facts; generally earnings of a spouse are CP regardless of whether they are kept in a separate bank account or in a commingled bank account)
FC § 903 (b): Incurred by one spouse during marriage - Provides that “in the case of K, the debt is incurred at the time the K is made, not at the time when it is breached.”
  1. CP is liable
  2. SP of K spouse is liable
  3. Unless necessaries, SP of Non-K spouse is not liable
FC § 903 (c): Incurred by one spouse after separation but before divorce
  1. SP of K spouse is liable
  2. CP is not liable
  3. SP of Non-K spouse is not liable


Debt for the necessaries of life
Incurred by one spouse before marriage – same as K debt because the necessaries obligation arises from the spousal duty of support and there is no such duty before marriage
  1. SP of K spouse is liable
  2. SP of Non-K spouse is not liable
  3. CP is liable, except that earnings of Non-K spouse are not liable if they are held un-commingled in a deposit account
Incurred by one spouse during marriage
  1. CP is liable
  2. SP of K spouse is liable
  3. SP of Non-K spouse is also liable, but if CP or SP of K spouse was available, Non-K spouse may seek reimbursement.
Incurred by one spouse after separation but before divorce – usually not tested on.
  1. CP is liable only to the extent of “common necessaries”
  2. SP of K spouse is liable
  3. SP of Non-K spouse is only liable to the extent of “common necessaries.”


Child and spousal support obligation
Child support obligation: Children, then divorce, then re-married to someone else. Fathers separate and community property with his new bitch, is liable. New bitch can seek reimbursement from fathers separate property. Incurred by one spouse before marriage – treated as ante-nuptial debt
  1. SP of K spouse is liable
  2. SP of Non-K spouse is not liable
CP is liable, except that earnings of Non-K spouse are not liable if they are held un-commingled in a deposit account; however, if CP is used for prior support obligations and obligor had SP income available, CP is entitled to reimbursement.

v Incurred by one spouse during marriage
  1. N/A except for a situation where there is an extramarital child
Incurred by one spouse after separation but before divorce
  1. 1. SP of K spouse is liable
  2. CP is not liable
  3. SP of Non-K spouse is not liable


Retirement benefits
Retirement accounts – a retirement plan can be treated as a community asset.  The court has broad discretion to calculate this. NEED TO KNOW: Two major categories of pension funds
1) Defined contribution plan Maintains an account for each individual employess, which contains the funds deposited into the retirement system, by either employee of employer 2) Defined benefitial plan- Has no individual records.
  • There is a contractual arrangement, that when the employee meets certain requirements such as age and length of service, the employee will be eligible to receive benefits, which are usually a percentage of the employee’s salary.
x of y cards