Term
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Definition
| All property, real or personal, tangible or intangible, wherever situated, which was acquired during marriage. |
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Term
| What are the three requirements to form a valid marriage? |
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Definition
| A ceremony, a license filed with the state, and voluntary consent. |
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Term
| What are the requirements to form a valid domestic partnership and who can become a domestic partner |
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Definition
| Same as for a valid marriage (consent, license, ceremony). Only same sex couples or a man and a woman with one of the partners over 62 years old. |
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Term
| What is a putative spouse and how is it formed? |
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Definition
| It is where a man and a woman, in good faith, enter into a marital relationship even though the marriage itself is legally void. A putative spouse situation will be considered valid if there has been a ceremony, a license, and a good faith belief in the validity of the marriage. E.G. a man is still married but separated from his spouse when he meets a new girl and marries her. |
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Term
| How can a couple opt in to the community property system? |
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Definition
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Term
| What is quasi-marital property? |
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Definition
| Property obtained under a putative spouse situation. |
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Term
| What is domicile and why is it relevant? |
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Definition
| Where the parties live with the intent to remain indefinitely. The state of domicile when the property was acquired is relevant for determining whether the property is characterized as community property or quasi community property. If domiciled outside CA when the asset was acquired, the asset is QCP. |
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Term
| What dispositional problem might arise at divorce or death where the property is located outside of California? |
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Definition
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Term
| What event or events can trigger the disposition of community property? |
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Definition
| The divorce or death of either party in California. |
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Term
| What event or events can trigger the disposition of quasi community property? |
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Definition
| Divorce or death of the ACQUIRING spouse in California. |
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Term
| Before what date can a Pre-nup be valid orally? |
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Definition
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Term
| What are the two exceptions to the writing requirement for a pre-nuptial agreement? |
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Definition
| Contractual remedies: Full performance of the promise, promissory estoppel. |
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Term
| What are the requirements in drafting a valid pre-nup. |
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Definition
| 1. Agreement in writing. 2. Must not contain any provisions against public policy (encouraging divorce or others.). 3. Must be voluntarily consented to meaning that the person must have consulted independent counsel or given the opportunity to do so and waive, 7 days to review the document, and have been fully disclosed of all material terms. 4. Must not be unconscionable at the time of execution. |
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Term
| Who bears the burden of challenging a Pre-nup? |
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Definition
| The person trying to set it aside. |
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Term
| What are the two ways to attack a pre-nup? |
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Definition
| Saying it wasn't voluntary (didn't meet with the procedural requirements of 7 days, independent counsel, and full disclosure). OR It was unconscionable at the time the agreement was executed. |
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Term
| What date does the current rule for a transmutation agreement come into effect? |
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Definition
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Term
| What is a transmutation agreement? |
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Definition
| To change the nature of property during marriage from CP-SP or SP-SP or SP-CP. |
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Term
| Does a pre-nup or a transmutation agreement require consideration? |
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Definition
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Term
| What is the modern requirement for a transmutation agreement? |
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Definition
| Must contain an express declaration of the intent to change the character of property. |
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Term
| What extrinsic evidence will be admitted to show the intent of the parties in transmuting the character of property? |
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Definition
| None, unless it's before 1/1/1985. |
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Term
| What is the only exception to the writing requirement for a transmutation agreement and how does it work? |
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Definition
| THe personal gift exception. Three requirements: 1. It must be a gift of clothing, apparel, jewelry, essentially a tangible item of personal nature. 2. It must be used solely or principally by the spouse to whom the gift is made. 3. The value must not be substantial in the circumstances of the marriage. |
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Term
| Who bears the burden to challenge a transmutation agreement? |
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Definition
| THE PARTY SEEKING ENFORCEMENT. |
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Term
| If the asset was acquired during the marriage, what is the presumption and who bears the burden? |
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Definition
| That the asset is community property, the challenger bears the burden to prove by a preponderance that the property is separate property. |
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Term
| What is the standard for whether the community should be reimbursed for contributions to the education of a party? |
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Definition
| When the education "substantially enhances the earning capacity of a party." |
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Term
| Are educational expenses reimbursed with or without interest? |
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Definition
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Term
| What types of educational expenses are reimbursable? |
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Definition
| Books, tuition, transportation, loan payments, etc. |
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Term
| Name all 5 ways one could argue that educational expenses should not be reimbursed. |
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Definition
| 1. The court is permitted to forgo reimbursement in the interests of justice. 2. Argue there was no substantial contribution. 3. Where a party is married more than 10 years, there is a rebuttable presumption that the community already benefitted from the education. 4. The challenging party also got a degree that "substantially enhanced the earning capacity". In this case, the rebuttable presumption swings the other way. 5. The education that the party received is offset by the reduction in their need of spousal support. |
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Term
| What is the definition of goodwill? |
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Definition
| Goodwill is a "quantified expectation of future patronage." It is an intangible asset that a business acquires over time. |
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Term
| When is goodwill divisible as community property? |
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Definition
| When the goodwill is attached to a community business that is transferrable. For example, if a famous movie director has obtained goodwill, he can't transfer his goodwill onto others. However, he can transfer the goodwill of his law firm if he sells the asset. |
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Term
| Upon death of the spouse, how does the court evaluate goodwill? |
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Definition
| The court doesn't value goodwill upon death, goodwill dies with the spouse. |
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Term
| How is goodwill valued upon divorce? |
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Definition
| It is estimated by the court at the time of separation only. |
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Term
| How does the court determine the community contributions to a copyright? |
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Definition
| The work done during marriage are community property, and generally the profits after divorce are considered separate property. If the copyright is not issued until after separation, the value of the copyright is apportioned according to the extent of the work created during the marriage. |
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Term
| How does one determine whether life insurance is community or separate property? |
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Definition
| Use the last payment before dissolution, if CP-CP if SP-SP. |
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Term
| A conviction for what crime will turn an otherwise community life insurance policy into separate property of the non-criminal spouse? |
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Definition
| Attempted murder of the spouse. |
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Term
| What are the four ways to rebut the general community property presumption? |
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Definition
| Direct tracing, indirect tracing, agreement (PNA TMA), and special title based presumptions. |
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Term
| A gift, devise, or bequest to a married party during the marriage is considered... |
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Definition
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Term
| If you can't remember when you bought an asset, but you have possession of an asset at the end of a long marriage... |
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Definition
| It raises the general community property presumption. |
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Term
| The rents/profits of separate property are... |
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Definition
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Term
| What does it mean to be living separate and apart? What is the effect? |
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Definition
| Living separate from the spouse with no intention to return to the relationship. Everything acquired from then on is presumed to be separate property. |
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Term
| Do both parties need to intend to end the relationship in order to be considered living separate and apart? |
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Definition
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Term
| When determining whether the parties are actually living separate and apart, what does the court look at in order to determine it? |
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Definition
| The subjective intent of the parties, whether the parties perceived the rift in their relationship as final? |
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Term
| What is the married woman's separate property presumption? |
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Definition
| It gives a special presumption to property that a woman acquired prior to 1/1/1975 |
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Term
| Under the MWSP, if a woman acquired title in her name alone, what is the character of the property presumed to be? |
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Definition
| The married woman's separate property. |
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Term
| Under the MWSP, if a woman acquired title in both her own name and her husband's name, what is the character of the property presumed to be? |
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Definition
| It is presumed to be community property. |
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Term
| Under the MWSP, if a woman acquired title in her name and the name of the 3rd party, what is the character of the property presumed to be? |
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Definition
| It is presumed that she owns the property as a tenant in common with the third party. |
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Term
| When a piece of community property is held in a joint tenancy, what happens at the death of one of the joint tenants? |
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Definition
| Levine-The right of survivorship kicks in and passes to the surviving spouse unless an agreement to the contrary can rebut the joint title. |
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Term
| When community property is held in a joint tenancy, what happens at dissolution? |
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Definition
| Anti-lucas statute: The court presumes the property is community property, and the property is disposed as community property would. |
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Term
| How can parties rebut the presumption of community property of a joint title at dissolution? |
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Definition
| By a writing or a deed with terms to the contrary. |
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Term
| At dissolution, how can a holder of joint title get his/her money back for separate property contributions to the jointly held title? |
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Definition
| Can trace the contributions too separate property, but THEY CAN ONLY BE REIMBURSED FOR ACTUAL CONTRIBUTIONS, THERE IS NO INTEREST ON THE CONTRIBUTIONS. |
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Term
| When accounts are co-mingled, is the property presumed to be SP or CP? |
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Definition
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Term
| Who bears the burden of keeping proper records for co-mingled accounts? |
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Definition
| The separate property proponent. |
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Term
| How does one prove that the funds expended in a co-mingled account were separate property through indirect tracing? |
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Definition
| Exhaustion method: By arguing that the amount expended for an asset exhausted the community funds in the co-mingled account. OR If the records have been lost by an act of god, you can use the total recapitulation method. You calculate all CP expenses and show that over the entirety of the marriage, there was more CP expenses than income. |
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Term
| What are the two methods by which business profits can be devised? |
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Definition
| The Pereira method and the Van Camp method. |
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Term
| How does the pereira method work, and when is it appropriate? |
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Definition
| The separate property spouse gets back their investment plus a fair market rate of return on their investment. The rest goes to the community. It is appropriate where most of the success of the business can be contributed to labor during the marriage (CP). |
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Term
| How does the van camp method work, and when is it appropriate? |
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Definition
| Do a valuation of the Fair market value of the services performed by the community, and the rest goes to SP. It is appropriate where market conditions were the main contributing factor to the success of the business. |
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Term
| What is a pure-installment acquisition loan and how does it work? |
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Definition
| Pure installment is where payments for an asset are made over time. THere is no third-party lender, but title does not pass until the final payment. |
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Term
| How do you classify an asset under a pure-installment acquisition? |
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Definition
| By apportionment (give CP and SP in amount paid and give each a pro-rata share in the ownership). |
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Term
| What is a pure-credit acquisition loan and how does it work. |
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Definition
| The buyer obtains an unsecured loan from a third party lender to purchase an asset and title passes immediately to the buyer. |
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Term
| How do you classify the loan under a pure credit acquisition? |
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Definition
| You use the intent of the lender. Generally if the loan was before marriage, it's SP and if it was during marriage, it's CP, but with other facts that can change. The only remedy for the loser of this battle is to trace out the SP or CP contributions and get reimbursed. |
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Term
| What is a purchase money secured transaction? |
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Definition
| The buyer obtains a secured loan from a third party lender to purchase the asset and make payments over time. |
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Term
| What is the formula for all PMST transactions? |
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Definition
| You first classify the asset based on when it was purchased. Then take the amount of community funds and separate property funds expended and divide it by the purchase price. That will give you a percentage interest of the community. You multiply the amount the asset has appreciated post marriage by the percent of interest. You then add the total amount of funds expended under CP to the CP total. THen the amount of SP expended to the SP total. |
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Term
| Which PMST formula deals with when the loan was taken out during marriage, but the down payment was separate property? |
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Definition
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Term
| What type of PMST loan deals with when the loan was taken out before marriage, and the down payment was separate property? |
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Definition
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Term
| What type of PMST transaction is appropriate where the property acquired has appreciated before the marriage has even begun? |
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Definition
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Term
| Are improvements to real property reimbursable? |
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Definition
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Term
| What is the requirement to be reimbursed for an improvement? |
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Definition
| It must enhance the value of the property. |
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Term
| When SP is used to benefit CP, can the SP be reimbursed? |
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Definition
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Term
| When CP funding is used to benefit the SP, when can the community be reimbursed? |
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Definition
| if the act is by the person owning the SP, it must be reimbursed (feather in the own nest). If the act is by the wife for the husbands SP, traditionally it was viewed as a gift, but wolfe made it reimburseable. |
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Term
| When sp funds of one spouse are used to benefit the SP property of another spouse, is it reimbursable? |
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Definition
| Only if it can be traced. |
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Term
| If there is a PI judgment during marriage, what presumption of the property's character arises? |
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Definition
| Depending on when the award was given it's either all CP or all SP. |
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Term
| What are the two exceptions to the general presumption that PI awards during marriage are CP? |
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Definition
| An Inter-spousal tort...and when the two are living separate and apart. |
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Term
| When the marriage ends, what is the characterization of a PI damage award? |
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Definition
| It is the separate property of the injured spouse unless justice requires otherwise, but the court cannot grant more than 50% to the non-injured spouse. |
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Term
| What is the fiduciary duty that spouses have towards eachother? |
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Definition
| They have a confidential relationship and an obligation to act in good faith and fair dealing with eachother. Both must use community assets for the benefit of the community. |
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Term
| Both spouses must consent to... |
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Definition
| The sale, conveyance, encumbrance, and leases longer than 1 year of real property. |
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Term
| How can the community be reimbursed for acts that detriment the community? |
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Definition
| If the spouse is grossly negligent or reckless with CP funds and it adversely affects the other spouse's CP interest, they may be required to reimburse the community for breach of fiduciary duty. |
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Term
| Does a spouse managing a community business need to give the other spouse notice for all business transactions? |
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Definition
| No, only for major transactions such as sales, leases, and encumbrances of all/most of personal property used in business. |
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Term
| A spouse must obtain written consent from the other spouse when: |
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Definition
| Gifting community property or disposing it at less than fair market value, selling home furnishings or clothes, or selling etc of real property. |
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Term
| When can a spouse dispose of the fiduciary written consent requirement? |
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Definition
| When the action is in the best interest of the community AND consent has been arbitrarily refused or cannot be obtained because of incapacity or absence. |
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Term
| What remedies are available for breach of fiduciary duty? |
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Definition
| 1. The party can ask the court for an accounting. 2. The court can revise the title of the asset to reflect the other spouse's name alone or that the title reflects is community character. 3. The spouse can be reimbursed 50% for any asset transferred or undisclosed in breach of fiduciary duty+attorney's fees and costs. If fraud occurs, can be reimbursed 100% 4. Recapture of the asset: During marriage, the transaction can be voided and recaputured by the community. The bonafide purchaser with no knowledge of the marriage must be reimbursed as well. At death or divorce, the complaining spouse can recover 50% of the cp interest in the asset. For real property, there is a one year SOL from date of recording to void the transaction. Similarly, if innocent BFP, must place BFP back into the position he was in prior to transfer. |
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Term
| What is the general rule for whom is liable for debts incurred before marriage? |
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Definition
| Generally, the community estate and debtor-spouse's estate is liable for those debts. Generally, the non-debtor spouse's SP is not liable for those debts. |
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Term
| How can a non-debtor spouse protect his CP earnings from the debtor-spouses debts incurred prior to marriage? |
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Definition
| By keeping his earnings in a separate account to which the other spouse has zero control or access to and not co-mingling other funds. |
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Term
| Are Child/spousal support considered debts incurred before marriage, and if there is sufficient SP to satisfy a child support debt, but CP funds are used to satisfy the obligation, what happens? |
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Definition
| Yes, and the community should be reimbursed by the available SP. |
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Term
| Who is liable for debts incurred during marriage? |
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Definition
| The community estate and the debtor spouse, but not the non-debtor spouse. |
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Term
| What is the exception to the general rule that a non-debtor spouse is not personally liable for the debts occurred by the other spouse during marriage? |
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Definition
| The non-debtor spouse is personally liable for the others' "necessities of life" whether living together or separate and apart. However, the SP is to be reimbursed from either CP or debtor's SP if those funds were available. |
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Term
| While living separate and apart whom is the community liable for. |
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Definition
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Term
| When is the community personally liable for one of the spouse's tort? |
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Definition
| It is second in line unless the tort was done while performing an activity for "the benefit of the community". |
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Term
| When is a spouse's SP personally liable for the torts of the other spouse? |
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Definition
| Never unless they would be personally liable if they were not married. |
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Term
| When is CP liable for an inter-spousal tort? |
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Definition
| After the tort-feasor's SP has been exhausted. |
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Term
| How are debts distributed after death? |
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Definition
| The same way as if they were married. |
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Term
| At divorce, how are debts distributed? |
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Definition
| SP debts are attributed to SP and CP debts are attributed to CP. |
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Term
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Definition
| Debts incurred during the marriage for the benefit of the community. |
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Term
| How are debts for the community estate divided at dissolution? |
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Definition
| Generally, they are divided equally, but the court does not need to do so. |
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Term
| Can the court assign the other spouse's debt to a non-debtor party? |
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Definition
| In certain circumstances, but generally it doesn't happen. |
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Term
| If a spouse dies intestate, who gets the community property? |
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Definition
| All of it goes to the surviving spouse. |
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Term
| If a spouse dies intestate, who gets the spouse's SP? |
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Definition
| Generally, if there is only one child living or one or more parent living, 1/2 of the SP goes to each the surviving spouse and the heirs. If there is more than 1 child, one child and issue of another deceased child, OR the issues of two or more deceased children, 1/3 of the SP goes to the spouse and the rest is diving among the heirs. |
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Term
| If a spouse dies with a valid will, how much of the CP and SP may the decedent devise? |
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Definition
| All of the SP and 1/2 of the CP. |
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Term
| What are the 5 exceptions for the general rule that CP or QCP is devised 50/50 upon divorce? |
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Definition
| 1. A negotiated settlement among the parties is not required to be 50/50. 2. When a party deliberately misappropriates an asset in breach of their fiduciary duty. 3. When there is a small estate (under $5,000) and one spouse has disappeared, the other spouse gets the entire estate. 4. Personal injury awards goes wholly to the injured spouse unless the interest of justice require otherwise. 5. When one spouse has nothing and the other has money, the debts incurred can be assigned to the spouse with money even if they didn't cause them. |
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Term
| What effect does the supremacy clause have on CP law? |
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Definition
| Federal law can pre-empt CP law in certain circumstances. |
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