Trick question--it can't. California does not allow common law marriage. 

However, if a common law marriage occurs in a state that recognizes common law marriage, the Full Faith and Credit Clause allows it to be recognized in California.

1. Incest

2. Bigamy

3. Not lawfully contracted

1. The former spouse must have been absent and not know to be living for five successive years preceding the subsequent marriage

AND

2. The former spouse is "generally reputed" or believed to be dead. 

1. Underage

2. Prior existing marriage (one falling under the bigamy exception)

3. Unsound mind

4. Force

5. Physical incapacity

6. Fraud (misrepresentation must have been "vital to the relationship")

1. Good faith belief by at least one party

2. On objectively reasonable grounds

3. That there is a valid marriage

The general community property presumption assumes that any asset or income acquired by a married person while living in California is community property, unless it is a gift, bequest devise or descent.

It can be rebutted by a preponderence of the evidence. 

The separate property presumption assumes that all property acquired prior to marriage, or during the marriage by gift, devise, bequest, etc, is SP. 

It can be rebutted by a preponderence of the evidence. 

What is the married woman's special presumption? What is an important date to remember in regards to it?

What evidentiary standard must be shown to rebut it?

Prior to 1975 if a woman was the title owner to property without her husband or if she was on the title with a third property, it wa assumed to be a gift and therefore SP. 

After 1975 this presumption doesn't mean shit and the property will be viewed under traditional CP principles. 

It can only be rebutted, assuming it applies, by clear and convincing evidence.

The Title Presumption that the form of ownership on the title presumptively represents the ownership interests of the spouses. 

Note that if a house, for instance, is titled in one spouse's name, it will be presumed SP only if the funds used to purchase it were SP. 

In regards to commingled bank accounts, how can the indirect tracing method be used to show that an asset that is presumptively CP is actually SP?

The indirect tracing method (exhaustion method) requires the SP proponent to that CP funds were already exhausted by the payment of family expenses at the time the asset was purchased. 

1. CP funds are presumed when paying for family expenses.

2. SP funds are applied towards family expenses only when CP funds have been exhausted

3. Any SP funds used for familiy expenses are presumed to be a gift. 

When is a business or professional practice's goodwill considered a CP asset?

What methods are used to measure its value?

Goodwill is considered a CP asset if it was created during the marriage.

Methods used to measure value:

1. Market sales valuation (expert testimony)

2. Capitalization of past excess earnings created by goodwill (no fucking clue what that means)

Never. 

Gotcha.

To what types of costs related to obtaining an educational degree (or professional license) is the community estate entitled to reimbursement?

What elements are necessary to be entitled to these types of costs.

Generally the community is entitled only to costs such as tuition, fees, books, etc--not living expenses.

Reimbursement is permitted if:

1. CP funds were used to pay for education costs

2. The earning capacity of the educated spouse was substantially improved

3. The married couple did not contractually waive the right to reimbursement

1. The divorce occurred more than 10 years after the education at issue

2. The other spouse also received an education through the use of CP funds

3. The need for support after divorce was reduced as a result of the education

The time rule applies when an employed spouse is already eligible for employment benefits upon divorce.

It takes the number of years the employed spouse worked during the marriage and divides it by the total number of years the employed spouse was participating in the plan. 

In fraction form:

YM

YW

What two rules are used when an employed spouse is not eligible for retirement benefits upon divorce?

How do they work?

The two rules are division in kind and cash out.

Division in kind:

This works like the time rule. The court will wait until the employed spouse retires and then take the years worked during marriage and divide it by the total number of years worked. 

Cash-Out:

An expert comes in and estimates the value of the plan as currently existing. The plan is then "cashed out" upon divorce.

When are stock options considered community property? How are they divided if they are determined to be CP?

When are they not community property?

Stock options will be considered community property if they are used to replace income during the marriage. If so, they are divided using the time rule.

They are not community property if they are used to replace income after divorce.

What is the general rule regarding term life insurance upon divorce? 

What is an exception?

Generally, courts hold that the policy upon divorce has no value because there is no investment component (unlike whole life insurance).

An exception to this is that, when the insured spouse has become uninsurable and the community paid the premium, then the community has an interest in the renewal value.

It will look to determine whether the last premium payment was made using SP or CP funds and apportion the proceeds based upon that.

Some courts, however, will simply apportion the funds according to the community interest in the policy (I think this would be using the time rule, but I am not sure)

Pereira Approach:

This approach is community property friendly. The equation:

SP: (Business value at time of 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 (above)

Van Camp

This approach is separate property friendly. The equation:

CP = Reasonable Value of Services During Marriage - Salary already paid

SP = FMV of Business at Divorce - CP

It looks to the seller's intent to rely on either SP or CP in granting credit.

Remember, though, that the general property presumption applies. Therefore in the absence of evidence that the seller primarily relied upon the purchaser's SP in extending credit, it will be considered CP.

If one spouse uses SP to improve CP, how will the court approach it? 

What's an important date related to this determination?

Before 1984 - the improvement is a gift.

After 1984 - the spouse contributing SP is entitled to reimbursement

The community will be entitled to a) reimbursement or b) the increase in FMV whichever is greater. 

Note that the married woman's special presumption would make this a gift if it occurred prior to 1975.

In a divorce proceeding, if a spouse is injured during the marriage and receives tort recovery, what is the result?

What if the injury is caused by the other spouse?

Generally, the tort recovery will be classified as CP. However, if the recovery has not been spent or commingled with CP funds, it will award it to the injured spouse unless the interests of justice require some award to the non-injured spouse. Even if the interests of justice require some award, it cannot be for more than half of the award.

If the other spouse causes the injury, the award will be SP.

What type of debts is the community estate liable for?

How can a non-debtor spouse protect earnings from creditors?

The community is generally liable for debts incurred by either spouse before or during marriage.

A non-debtor spouse can protect CP earnings by placing them into a separate bank account from which the other spouse has no right of withdrawal.

A spouse's SP is liable for debts that that spouse incurred before or during the marriage, but not for the other spouse's debts.

In addition, a spouse is personally liable (including their SP) for any necessaries of life while the spouses are living togeter or living apart.

It will depend upon whether the tortfeasor spouse was acting "for the benefit of the community."

If acting for the benefit of the community, CP funds will be used to satisfy the judgement and then SP funds of the toretfeasor spouse.

If not, it will be the reverse.

If a spouse improperly disposes of property without the other spouse's written consent, what actions may the non-consenting spouse seek before the death of donor spouse?

What about after death?

1. They can ratify the gift 

OR

2. Revoke the gift and sue to recover the property

If the donor spouse has died, the gift can be voided for an amount equal to half the property's value.

The sale will not be affected.

However, the non-managing spouse can sue if the managing spouse's sale "substantially impaired" the non-managing spouse's CP interest. 

1. Duty to disclose

2. Duty to account

3. Duty to obtain consent

1. Intent to transmute

2. In writing

3. Express declaration of change of characterization