Essay Intro

CP

In CA, all property acquired during marriage is CP, while property acquired before marriage, gift or inheritance is SP.

The characterization of an asset as CP or SP depends on 3 factors:

1. Source of the item;

2. Actions of the parties may have taken to alter character;

3. presumptions affecting an item

Essay Intro (2)

QCP barf

The issue is whether CA CP laws apply, because H & W were married & domiciled in State X, a non-community prop state.  

QCP is property acquired by either spouse that would have been CP had the spouses been domiciled in CA

-could also be "SAPD" wehre you include disposition of prop

- Equal distribution rule: Everything will be divided up 50/50 at the end unless, 1. kids uprooted, 2. shares in close corp. or 3. pension

ONLY apply p/vc if business was operating BEFORE marriage or bought w/ SP during marriage

- when greater factor in value was LABOR

then: SP investment given rx rate of return --

remainder = CP

Reverse Pereira/Van Camp

If CP business is operated AFTER separation by one spouse, --

then: Van Camp, rx compensation for svcs as SP

If dollar amounts given:

H owed business valued at $100K when married: 10yrs later at divorce -- worth $400K

Formula: 

Rx rate of return     $100K

(10% per year)      

original principal     $100K

EQUALS:

200K SP

200K CP

Use when greater factor in value was MARKET

--RX value of spouse's svcs is CP (less amount already rec'd by community)

Remainder is = SP

If P/vc doesn't apply mention that "goodwill" of company is SP - a sister issue w/ pereira & van camp

One or both spouses have a good faith belief in the existence of a valid marriage

-has same property rights as lawful spouse

- received quasi-marital property QMP

Via marriage of Moore

Fact ptrn states: W buys house for 100K w/ SP before marriage.  Pays 20K down & after marriage w/ 80K = CP

CP = 8/10 ; SP 2/10

numerator: principal debt reductions by CP

denominator: purchase price

(only prin. payments count; reduction on taxes does not)

1. Direct tracing - must show there were sufficient SP funds available at all times and that he intended to keep his separate funds from community funds

2. Exhaustion method - all CP funds were exhausted at the time of acquisition, therefore the purchase funds must have come from SP

- seen in situation where bank accounts is comingled

Will be deemed not signed voluntarily IF:

1. party NOT represented by independent counsel

2. party NOT given at least 7 days to look over & seek advice

3. if no lawyer, not fully informed in clear language of agreement

UNCONSCIONABLE IF:

1. No disclosure of spouse's financial condition

2. spouse had knowledge of spouse's assets

applies before 1984

Death - where title was taken in joint & equal form, use of SP to improve CP - no reimburse unless agrmnt.

Divorce (Anti-lucas) 1987 +

SP to improve CP - anti-lucas applies &

reimbursement for Downpayments, Improvements, Principal payments...UNLESS written agreement that says prop is SP

Distinguish CP -- SP where CP funds used to improve SP and title not taken in joint and equal form, then:

"The spouse is only using CP funds to "feather their own nest" and = reimbursement.

After Jan 1, 1985:

MUST be in writing:

1. signed by spouse whose interest is affected

2. Expressly state that a change in ownership is being made.

"Our car"; "Our stocks"

EXCEPT: gifts of tangible prop which aren't substantial taking into account the circ. of the marriage (clothes, jewelry etc.)

CA treats unvested & vested pensions as CP to the extent they were earned during the marriage.

Time rule: Years of service while married/total # of years employment to retirement

-look out if Federal plan involved (S.S.) -- preemption