Term
| Basic definitions of CP, SP, QCP |
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Definition
Cp-Property acquired during marriage
SP-Property acquired either before marriage or after death, divorce, or living separate and apart
QCP-Acquired by a marriaed couple while living in a non-cp state that would have been characterized as CP had they been domiciled in CA |
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Term
| Are common law marriages created in other states recognized? |
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Definition
| Yes because of full faith and credit. |
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Term
| What remedies are available to unmarried cohabitants who arent married? |
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Definition
1. Contract principles
2. Unless based on sexual services
3. Court may determine whether the couple had an implied understanding
4. Quantum meruit and other equitable remedies |
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Term
| What are the requirements for the application of the putative spouse doctrine? |
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Definition
A good faith belief by one or both spouses in the validity of the marriage
AND
Objectively reasonable grounds that the marriage is valid. |
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Term
| Does the putative spouse doctrine extend to domestic partnerships? |
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Definition
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Term
| What is quasi marital property and how is it treated at death or dissolution? |
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Definition
| All property that was obtained through a putative spouse relationship. It is treated like CP or QCP. |
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Term
| How are registered domestic partners treated on dissolution or death? |
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Definition
| Same as spouses and they have to be opposite sex with one party older than 62 or same sex couples. |
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Term
| How many presumptions are there and what are they? What is the burden of proof to rebut the presumptions? |
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Definition
5
General presumptions must be rebutted by a preponderance
Special presumptions must be rebutted by clear and convincing evidence.
General CP presumption-Anything acquired or income earned by a marriage whole living with a spouse in CA and before separation is presumed to be CP.
General SP presumption-Anything acquired before the marriage or during the marriage by gift, devise, bequest and the rents, profits, and issues thereof is considered SP.
Married Woman's Special Presumption- Before 1975, married women who owned property without her husband's name on title were presumed to own that property in SP.
Special title presumption on death- On death of a spouse, the form of ownership is governed by the title of the instrument.
Special Community Property Presumption at Divorce- Jointly held property is presumed community property at divorce |
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Term
| How does tracing and indirect tracing work? |
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Definition
Tracing-Trace the source of the funds used to purchase the asset.
Indirect tracing-use the exhaustion method which the Sp proponent must prove that CP funds in the account were already exhausted by payment of family expenses at the time that the asset was purchased. |
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Term
| How is goodwill calculated? |
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Definition
| It is an intangible value that most BUSINESSES have that is based upon the expectation of future business and/or upon an established name or reputation. |
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Term
| When can the community be reimbursed for contributions to educational degree of a spouse? |
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Definition
1. CP funds were used to pay for the education costs
2. The earning capacity of the educated spouse was substantially improved
3. The married couple did not contractually waive the right of reimbursement |
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Term
| What are defenses to the community's right to reimbursement for contributions to educational degrees of a spouse? |
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Definition
1. The divorce occurred more than 10 years after the obtaining of the degree and the community has already benefited from the degree.
2. The educational degree reduced the need for spousal support.
3. The spouse also received an education paid for with CP funds. |
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Term
| How are CP reimbursements for retirement pensions calculated? |
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Definition
| Divide the years during which the spouse was employed by the total number of years that the employed spouse has been participating in the retirement plan. Take that percentage. The spouse can either be paid in the divorce or the spouse court can order payment upon retirement of the divorcing spouse. |
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Term
| How are stock options characterized? |
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Definition
| It depends on the type of compensation they are designed to replace. If they are used to replace earnings during marriage, they are CP, if they are used to replace earnings after divorce or separation they are SP. |
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Term
| How is term and whole life insurance calculated? |
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Definition
Term-The insurance is characterized by the payment for the term in which it comes into effect.
Whole-The asset is characterized as CP in proportion to the number of CP premium payments. |
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Term
| How is the pereira approach calculated and when does it apply? |
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Definition
It applies where the SP business was productive due mostly to the work, skill, labor during marriage.
Formula- SP= SP business value at marriage + (Value of Sp business at time of marriage X fair rate of return X years of marriage)
CP= FMV of business at divorce-SP |
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Term
| How is the van camp approach calculated and when does it apply? |
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Definition
When the reason for the rise in value of business is mostly due to market conditions.
CP= Reasonable value of services provided during marriage-Salary already paid.
SP= FMV at divorce-CP |
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Term
| When is the reverse pereira and van camp used? |
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Definition
| When the value of the business has appreciated after divorce. |
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Term
| How is a credit purchase asset classified? |
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Definition
By the intent of the lender test.
If the lender relief on the purchaser's SP, then SP
If the lender relied on community assets or income streams then CP. |
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Term
| When SP is used to improve the other spouse's SP... |
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Definition
| It's presumed a gift, but can be rebutted |
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Term
| When SP is used to improve CP... |
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Definition
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Term
| When Cp is used to improve a spouse's SP... |
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Definition
| It's reimbursable unless before 1975 with MWSP |
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Term
| What is the difference between a PI award before marriage and during marriage |
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Definition
PI before marriage is SP during marriage
PI during marriage is CP during marriage but becomes SP after marriage unless justice requires giving the other spouse up to 50% of the award. |
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Term
| Is the community estate liable for debts incurred by either spouse before or during marriage? |
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Definition
| Yes unless the earnings are segregated. |
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Term
| When will the non-debtor spouse be liable for the SP debts of the other spouse? |
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Definition
| When the debt was incurred for the necessaries of life whether together or separate and apart. |
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Term
| Who must a creditor go after first if the spouse committed a tort? |
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Definition
If the tort was committed for the benefit of the community, the community estate is liable first.
If the tort was not committed for the benefit of the community, the tortfeasor's separate property is liable first, then the community estate. |
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Term
| What is required before a spouse gives a community gift to a 3rd party. Remedies? |
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Definition
| Written consent of the other spouse. The remedy is to sue to recover the property. |
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Term
| When real property is held jointly by spouses, what powers does each spouse hold? |
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Definition
1. Both spouses must participate in a conveyance of real property
2. An innocent spouse can avoid the unilateral transfer of community real property if the spouse misrepresents their marital status.
3.A nonconsenting spouse may void an encumbrance on real property |
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Term
| What fiduciary duties do spouses owe eachother? |
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Definition
Disclose-All material facts and information regarding the existence, characterization, and valuation of community assets/debts.
Duty to account-Provide equal access to all information, records, and books.
Obtain consent-Of the nonmanaging spouse when making gifts, conveying or encumbering property, disposing of community assets. |
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Term
| What are the requirements for a valid prenup? |
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Definition
1. In writing
2. Signed by both parties
3. Enforceable without consideration |
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Term
| How does a party prove that an agreement was not voluntary? |
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Definition
1. The spouse against whom enforcement is sought was not represented by independent legal counsel or signed a knowing and voluntary written waiver of counsel.
2. The party had not less than 7 days between the time that party was first presented with the agreement and signing.
3. The party was under fraud, undue influence, capacity etc. |
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Term
| What is required in a transmutation agreement? |
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Definition
| An express declaration to change the ownership/characterization of the property. |
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Term
| What is exempted from the transmutation written agreement requirement? |
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Definition
1. Gift between spouses
2. Of clothing, apparel, personal nature.
3. Not of substantial value. |
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Term
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Definition
After 1984, CP presumption that jointly held property on divorce is CP can only rebut the presumptions with a collateral writing evidencing intent to transmute to SP
AND
An Sp contribution is reimbursable. |
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Term
| After living separate and apart, are the spouses responsible for the other spouse? |
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Definition
| Only for necessarries of life. |
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