Term
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Definition
| “California is a CP state. All property acquired during marriage is presumed CP. All property acquired before marriage or after living separate and apart is SP. In addition, any property acquired by gift, devise, bequest or descent, with rents, issues and profits thereof is SP. In order to determine the character of any asset, courts will trace back to the source of funds used to acquire asset. A mere change in the form of asset does not change its characterization. With these basic principles in mind, we can turn to the specific items of property involved in this instance.” |
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Term
| Atenuptial (Prenup) Agreement |
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Definition
| Must be in writing cannot be amended or revoked unless in writing. Void if promotes divorce or if unconscionable. Full disclosure of $$$ |
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Term
| Reasons for Involuntary Prenup (5) |
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Definition
Didnt' get 7 days to think about it.
Party didn't have independent counsel.
Not fully informed in plain-English what rights and obligations given up.
No full disclosure of $$$$$$
Disclosure was not waived in writing... |
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Term
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Definition
| Faith, fair dealing, disclose assets that are owned or sold. Highest duty couples have to each other. CANNOT WAIVE LEGAL DUTY TO CARE FOR SPOUSE (sick, dying) |
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Term
| Post-nuptial "Transmutation" |
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Definition
Oral OK before 1985-->after must be in writing SIGNED by the party against whom enforcement is sought.
No writing for gifts...
Insubstantial in value depend on couple's $$$$$ (Ring, jewelry) |
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Term
| Transmutation Inferred or Presumed (6) |
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Definition
Gifts purchased w/CP donation unless disputed. Improvements to CP: before 1985 donation intent when SP used.
Recital of separate ownership: DOESN'T transmute unless deed signed by affected spouse.
Recital of JT: Here H & W agreed to transmute; if neither understood rebuts presumption but if one didn't intend will not rebut.
Divorce-->JT presumed CP
Bank Accounts: CP may be overcome by tracing to SP. |
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Term
| Classifying as C or SP (6) (A,C,P) |
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Definition
3 Classification tests:
- Possessed during marriage
- Possessed end long marriage
Acquisition after dissolution: Acquisition must show 3 tests to apply
Contrary evidence: if unopposed CP; if conflicting BoP on one alleging SP
Presumption doesn't apply to property possessed by FORMER spouse at death |
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Term
| (MWSP) 1975 (PRO WIFE) (5) |
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Definition
Bought w/title before 1975 in married woman's name SP.
Where W commingles property: CP.
Title taken with H & W name but no JT or being w/H & W
Overcome pro W presumption:rebuttable by proof CP were used; if evidence conflicts BoP on one alleging CP
Pro-W may be unconstitutional NO for Bona fide purchaser |
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Term
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Definition
Treated as regular spouse CP at divorce/death
Good faith belief: Subjective test, reasonable grounds, good faith presumed
Common Law: contracted in CL state OK in CA |
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Term
| Putative Marriage Annulment |
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Definition
PS may have quasi-K action
PS may receive alimony |
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Term
| Marvin Relationships (No Putative Marriage) |
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Definition
All property presumed separate owned
Express or implied K's to share are equally enforceable; implied K terminable at will |
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Term
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Definition
| Property acquired during marriage that is divided as if it were a valid marriage. |
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Term
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Definition
| CP business with time labor and skill contribute to profit or increase. Allocates original SP investment plus fair return. CP receives balance after SP allocation. |
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Term
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Definition
| Increase due to business or economic conditions. NO SP INVESTMENT. CP paid reasonable value for services. |
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