The marital economic community begins at marriage, and ends upon divorce, the death of a spouse, or a permanent physical separation with an intent not to resume the marital relationship.

1) property received by gift, bequest, devise, or descent

2) rents, issues, and profits of SP acquired before marriage, and 

3) property acquired in exchange for separate property

• Each spouse is entitled to 1/2 of each item of CP (not 1/2 of aggregate unless economic circumstances warrant awarding certain assets to one spouse and cashing out the other spouse so that each party ends up with 1/2 of community estate)

1) Misappropriation of CP before or during pendency of divorce

2) Educational debts - you take law school loans with you (treated as SP)

3) Tort liability - if incurred by 1 spouse not based on activity for the benefit of the community

4) personal injury award - CP, but awarded to injured spouse

5) "negative community" - community liabiities exceed assets, relative ability of spouses to pay debt is considered (oncern is protect creditors)

Disability benefits are either CP or SP depending on the wages they are designed to replace.  To the extent disability benefits are taken in lieu of retirement benefits, disability benefits are treated as retirement benefits.

replace marital earnings = CP

replace separate post-divorce earnings = SP

Education and training acquired during marriage are not treated as divisible property. However at divorce, there is an equitable right to reimburse the community when:

1) community funds are used to pay for education or training or to repay a loan, AND

2) education or training substantially enhances the earning capacity of the party

NOTE:  subject to defenses

1) community has already substantially benefited from education or training (> 10 yrs passed between contributions and divorce)

2)  the other spouse has received community funded education

3) the need for spousal support is reduced as a result of education or training

1) statutory facts - gift, bequest, devise / rent or income

2) parties agreed that property would not be CP

3) both spouses knowingly took title in a form other than CP (ie joint tenants)

4) one spouse took title in a form that evidences a gift to the other spouse, or

5) the purchase funds are traced to an SP spource

undue influence

she did not breach her fiduciary duty

1) where oral agreement is fully performed (marriage alone is not significant performance)

2) estoppel based on detrimental reliance

1) it was not signed voluntarily (voluntary = represented by independent legal counsel AND fully informed in writing of terms and basic effect of agreement, was given at least 7 days to sign)

2) unconscionability (spousal support - not represented by ind legal counsel, OR provision is unconcionable @ time of enforcement; everything else - unconscionable when made AND no full and fair disclosure, right to disclose not waived, AND party challenging had no adequate knowledge)

1) in writing

2) signed by spouse whose interest is adversely affected, and

3) must explicitly state that a change in ownership is made

NOTE:  exceptions to writing do NOT apply, gifts which are not substantial in value OK

NOTE:  before 1985, oral transmutations permitted

CP = (FMV salary of manager) * (# of years) - (family expenses paid from business earnings). Remainder is SP

Value of managing spouse's SP business (@ time of marriage) + fair rate of return on same (10% per annum) = SP portion of business (remainder = CP)

Use Periera when the personal skills and effort of the managing spouse increased the value of the business

1) Code of Civ Procedure 473(b) - 6 months after judgment, can be relieved if judgment was due to mistake, inadvertence, surprise, or excusable neglect. [most liberal]. Anytime, can bring motion for fraud, mistake, or duress.

2) relief provided by family code - actual fraud, perjury, or mistake

• All of the SP if the decedent has no surviving heirs.
• One-half of the SP if the decedent has only one surviving heir (other than his spouse).
• One-third of the SP if the decedent has more than one surviving heir (other than his spouse).

Under the Lucas ruling, when a married couple takes title in joint and equal form, it is presumptively a gift to the other spouse's SP. This presumption is rebuttable by an agreement to the contrary.

1) Acquisition or improvement: Under Anti-Lucas, contributions of SP to the acquisition or improvement of CP is entitled to reimbursement for

DIP

Down Payments

Improvements

Principal Payments

(No reimbursements for loan interest, property appreciation, maintenance, insurance & taxes)

2) Deed of SP into jointly titled propert: A spouse who deeds SP into jointly titled property is entitled to reimbursement for the FMV of property when it was deeded into joint tenancy

“Property purchased from a commingled bank account is not presumptively CP, but the burden of proof is on the SP proponent to show that SP funds were used to purchase the asset. The SP proponent can use either the exhaustion method or the direct tracing method to prove that SP funds were used to purchase the property.”

Each spouse has exclusive management and control of his SP, and equal management and control of CP, subject to exceptions

Exceptions:  1) transfer of household furnishings or clothing without written consent, 2) a business that is operated or managed by one spouse, and 3) conveyances of community real property without joinder by both spouses

Both spouses must jointly execute a written instrument in order to validly convey community real property

When severance pay resembles a retirement pension, it is treated as community property.

When severance pay is intended to sustain the worker for a short period of time until next job, it is analogized to disability pay and treated as SP (because it replaces postdivorce lost wages)

agreement is involuntary, unless

1) represented by independent counsel when signed, AND

2) given at least 7 days to sign between being presented with the agreement and advised to seek legal counsel, OR

3) if not represented by independent counsel, was fully informed in writing of terms and basic effect

Waivers of spousal support are unenforceable if

1) party was not represented by independent legal counsel @ time of signing

2) provision is unconscionable at time of enforcement

Prior to 1975, where property is taken in the married woman's name alone, the property is presumed to be her SP.

presumption can be rebutted by showing

1) H did not intend to make a gift to W but had some other reason for taking title in her name

2) W took title in her name w/o H's knowledge or consent

Contract debt - time contract is made

Tort debt - time tort occurs

Child support - prior obligations treated as debts incurred before marriage, all others incurred during

1) one spouse deliberately misappropriates SP

2) liabilities exceed assets

3) one spouse has incurred educational debts

4) one spouse has incurred tort liability in activity not for benefit of other spouse

5) separate debt has been incurred (before marriage, after separation, not for benefit of community)

6) one spouse receives community estate personal injury damages

1) Source - when and how was asset acquired

2) Actions - did spouse take any action that would change character of property

3) Presumptions - any legal presumptions that may affect character of the asset

If a tortious act occurred while the spouse was performing activity for the benefit of the community, the spouse's liability will be taken from 1) CP, and then 2) tortfeasor-spouse's SP (NOT non-tortfeasor spouse's SP)

If liability is NOT based on activity for the benefit of the community, liability shall be satisfied from SP and then from CP