Gilbert Law Summaries on Community Property
Author:
Reppy Jr., William A.
Edition:
18th
Copyright Date:
2004
14 chapters
have results for community property
Chapter Six: Conflict of Laws Problems 37 results (showing 5 best matches)
- The characterization of an asset as quasi-community property is mainly significant at of the community by death or divorce. (Recall that at death the quasi-community property concept is employed in the ancestral property statute; §374.) Family Code section 910 says that for creditors’ rights purposes only, property that is quasi-community at dissolution of marriage is also to be treated during the marriage as if it were community property, but this is probably unconstitutional. (
- In situations where a married couple moves to California after acquiring assets in a former domicile, quasi-community property legislation alters in most cases the judge-made rule that the property label attached by the former domicile will control treatment of the asset in California. These statutes, which create the category of
- 2. The policy at work here is to treat quasi-community property the same as actual community property except when doing so raises problems (such as a taking of property, discussed in chapter Seven).
- At divorce, quasi-community property is treated like community property for the purpose of dividing assets;
- California Family Code section 125 defines quasi-community property as any realty or personalty acquired by a spouse while domiciled elsewhere that would have been community property had the acquiring spouse been domiciled in California. The statute also specifically calls for tracing quasi-community property through changes of form ( inheritance, earnings during marriage, etc.) to classify the property.
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Exam Questions and Answers 71 results (showing 5 best matches)
- E. W implicitly contracted with Peace Hospital to supply her necessaries. Of course, her separate property and the community property are liable. H’s separate property is liable, too, if the “necessaries” doctrine applies. California Family Code section 4301 literally seems to say that H’s separate property is not liable because there exists some community property and some quasi-community property (the oil painting). But if Peace levies first on the community cash and the oil painting, the bars to liability of H’s separate property for the “necessaries” debt should be removed. In effect, section 4301 then establishes a priority of liability. That statute does not empower H to require exhaustion of W’s nonquasi-community separate property (Blackacre) before H’s separate property can be seized.
- There is no indication in the question that H has any separate property. If he did, W’s conservator could compel F to initially levy on the separate property of H and exhaust it before levying on the community owned Blackacre, if the court determined H’s battery of F was not a community tort. Since H was trying to recover possession of community land, however, the community benefit test possibly is satisfied so that community property is primarily liable to F.
- A. W’s separate property and all the community property except H’s earnings are liable for W’s premarital contract debt. (Under present law, H’s earnings are exempt from liability as long as they are retained in a bank account in his name to which no nonexempt community property is added.) Whether C can levy on the house depends on the house’s classification. If the house is community (due to transmutation), C can reach the entire nonexempt interest. If it is joint tenancy property, H’s half interest is not liable, as it is his separate property. If the house is entirely H’s separate property, C cannot levy on it at all.
- B. In the divorce suit, the absence of joint tenancy ownership of the house is even more easily established because of the presumption of community ownership. (Moreover, joint tenancy property is now divisible at divorce in the same manner as community property.) The question arises whether the presumption of community property ownership can be overcome to establish separate ownership by H. It will be overcome if the antenuptial agreement is invalid so that the money used to buy the house was H’s separate property. Family Code section 2580 (
- The character of the motel depends on the character of the cash used to buy it under principles of tracing. (If tracing breaks down, the presumption that acquisitions during marriage are community could apply by analogy in favor of a putative spouse to establish that an acquisition is quasi-marital.) At least 50/130 of the purchase price was Hal’s purely separate property—being traced to the cash he earned before “marrying” Paula and which he invested in Blackacre. The portion of Blackacre’s rise in value due to inflation and market pressures is also purely separate property of Hal and not quasi-community. To the extent labor of Hal or Paula increased Blackacre’s value, there is a quasi-community interest, assuming the complete community property system is applied by analogy to quasi-community, quasi-marital situations.
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Chapter One: Classifying Property as Community or Separate Property 268 results (showing 5 best matches)
- A document of transfer can expressly annex a right of survivorship to community property. This right of survivorship is severable in the same manner as a joint tenancy. [Cal. Civ. Code §682.1] Community property with right of survivorship is subject to the management and creditors’ rights rules of regular community property, not those applicable to joint tenancy property, which is a form of separate property.
- Both the community and the separate estate of one or both of the spouses may contribute consideration toward an item of property acquired during marriage. In such cases, each estate (community or separate) that contributes consideration applied before or at the time title to the property is acquired is credited with a and the property is co-owned as a (although the community portion thereof is community-owned). [
- If the borrowed funds are separate property and subsequent mortgage payments are made with community funds, the community funds can the separate property share of ownership only when the loan is secured by a purchase money mortgage ( suggests that such community reimbursement claims would be offset and produce no remedy if the community occupied the real property at issue. Note that the character of the down payment is irrelevant in determining if a buy-in occurs. In the unusual situation where the down payment is community and borrowed funds used to complete the acquisition were one spouse’s separate property, with title taken in that spouse’s name, subsequent community funds used for mortgage payments will buy out the separate property interest.
- also states that when H and W separate so that Family Code section 771 (the living-apart statute) applies, the community share of title based on paying for an improvement does not share in any part of post-separation increase of value of the property as a whole. However, the court overlooked the fact that such a separation does not result in classifying as separate property profits earned without labor from pre-separation community property ( §44). Passive increase in value of a community asset after separation is likewise community.
- Under California Family Code section 770, property received by one spouse alone at any time by will or intestate succession is
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Chapter Three: Liability for Debts 39 results (showing 5 best matches)
- After the tortfeasor’s separate property is exhausted, the victim spouse can reach community property (which then becomes the victim’s separate property). Since the victim-spouse already owns half of the community property, the recovery from such property would logically be “two for one” (so that the tortfeasor’s share is the sole payor); if the remaining liability is $500, $1,000 in community assets would be required to satisfy it.
- Other community property is liable, but if one spouse’s alimony or child support creditor on it, the community is entitled to to the extent that nonexempt separate property of the obligor spouse was available at the time. Reimbursement is owed under the same test if the obligor spouse pays the debt with community or quasi-community property. [Cal. Fam. Code §915(b)]
- based on an act or omission involving an activity for the benefit of the community, the tortfeasor’s
- Presumably the tortfeasor spouse must invoke the protection of section 1000(b) by paying the judgment with community property subject to his management or identifying other nonexempt community property upon which the creditor can levy ( a community bank account in the other spouse’s name). The creditor’s only obligation would be to give the tortfeasor this opportunity before seizing the tortfeasor’s separate property.
- accumulations that are separate property of the debtor spouse under section 771 (the “living separate and apart” doctrine) but that would otherwise have been community assets. Payments may then be compelled (in the following order) from community property, the debtor’s quasi-community property, and the debtor’s ordinary separate property.
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Capsule Summary 268 results (showing 5 best matches)
- Commingling of separate and community property will not change the character of the separate property per se. However, the pro-community presumption usually makes the commingled mass community property until “uncommingling” identifies the separate and community shares.
- If title to property was acquired with a loan secured by a purchase money mortgage ( a mortgage on the very parcel acquired) and the funds borrowed were separate property, use of community funds to make mortgage payments allows the community to the separate property interest and to a share of title. However, if the funds borrowed were community property, use of separate funds for mortgage payments does
- The managing spouse does not have to invest community property prudently like a trustee but does have a duty to make community property under his sole control productive. Also, a spouse must account for and hold as trustee all profit or benefit from a transaction that concerns community property that the other spouse did not consent to.
- Generally, all community property is liable for a spouse’s debts regardless of who has management and control of the assets. By statute, one spouse’s quasi-community property is liable whenever community property is liable, but this raises some constitutional concerns.
- Claims presented to the decedent’s personal representative may be paid partly with the survivor’s share of community property and partly with the administered property.
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Approach to Exams 17 results (showing 5 best matches)
- If the property would ordinarily be community
- If so, the doctrine of quasi-community property may apply. And remember that in a federal-state conflict, property may be deemed “separate” under federal law notwithstanding the fact that California would consider it community.
- What is the normal rule of management for the type of property at issue
- Does the type of property involved fall under an exception
- the general rule is that all community property and the separate property are liable for the debt. After considering the general rule, consider if any of the
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Introduction 4 results
- In a community property state, on the other hand, W is co-owner by law of one-half of H’s earnings accrued during marriage and cohabitation, just as H owns one-half of W’s earnings. In eight of the nine community property states (including California), W has “equal management” power over H’s community earnings in (but not all) situations (as does H over W’s earnings). Usually, if H’s earnings are subject to equal management, they can be reached by W’s creditors. In California, upon judicial dissolution of the marriage (divorce), H and W each become owners of one-half the community property in value. When a married person dies, she can bequeath a one-half interest in the community property. Thus, the community property system goes much further than the common law system in treating the spouses as marital
- Community property involves co-ownership of property by a husband (“H”) and wife (“W”) in a form somewhat similar to a partnership. Under the English common law approach to marital property, H is the sole owner of his earnings during marriage—although for some purposes (such as purchasing family necessaries) W may be his agent capable of obligating H’s earnings by her contracts. Under this traditional approach, the court at divorce may order H to pay over a fair part of accumulated earnings to W, and at H’s death, W may be entitled to a “forced heir’s” share (often one-third) of such earnings. During marriage, however, W does not share ownership of such property; and if she dies before H, she cannot bequeath any of it.
- This Summary is based on the community property law of California. The laws of other community property states differ in varying degrees from the law in California. In decreasing order of similarity to California, these states are Nevada, Idaho, New Mexico, Arizona, Washington, Louisiana, Wisconsin, and Texas. At certain points, the Summary mentions rules of law developed in these other states that—although inconsistent with
- Cal. Fam. Code §310] Unfortunately, the word “dissolution” has long been a generic term that encompasses a dissolving of the husband-wife community by divorce by death of a spouse. To avoid using the cumbersome term “judicial dissolution” to refer to divorce—in order to distinguish it from dissolution in the broad sense—this Summary continues to use “divorce” as a short term for “judicial dissolution.” “Dissolution” continues to mean a dissolving of the community by either judicial dissolution (divorce) or death. Similarly, the traditional term “annulment” is used in the Summary in place of the cumbersome statutory term “judgment of nullity of marriage.” [See Cal. Fam. Code §2250]
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Chapter Six: Constitutional Law Issues 53 results (showing 5 best matches)
- California Family Code section 910, which makes a spouse’s quasi-community property liable for debts in situations where community property would be liable, arguably results in an unconstitutional taking of the nondebtor spouse’s property. The statute makes the nondebtor’s separate property that meets the definition of quasi-community property liable on the debt. It is doubtful whether the state has a strong police-power interest in providing such a windfall for a creditor who contracted only with the other spouse to justify this taking. (
- The constitutional definition of separate property means that the legislature cannot narrow the present statutory definitions of such property. However, it could the scope of separate classes of property—
- Prior to 1975, W’s post-1951 uncommingled community earnings were not liable for H’s debts. A 1975 statute specifically directed at preenactment acquisitions removed this exemption. The court in held that the new rule could apply to preenactment acquisitions of W and preenactment debts of H because no property right was taken— W would stand to lose as much “property” if the creditor took H’s community earnings and she would still have a reimbursement claim if H’s “separate” debt were involved. The court also found that W could not have any reliance interest in the old law that would outweigh the social utility of applying the new rule to all community property.
- as preempting state law so that the policy and proceeds must be classified as H’s separate property. However, California courts, ignoring the “forestalling” holding of the United States Supreme Court, have held that it was California’s anti-gift statute ( that H could give away all the proceeds, but that the proceeds and the policy were still classified as community. Under the California view, the policy at divorce is valued and awarded to H as community property, while W receives community property of
- to apply to life insurance available under an act of Congress to federal civil service employees (“EGLI”). To the extent that these benefits are acquired by community funds or labor during marriage and cohabitation, they are therefore
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Chapter Two: Management and Control of Property 68 results (showing 5 best matches)
- Property acquired by a spouse while living in a common law state before moving to California that would have been community property had the spouse been a Californian at the time of acquisition is quasi-community property. ( , §459.) For most purposes quasi-community property is treated as a spouse’s separate property prior to divorce or the spouse’s death. If after the move to California the spouse deliberately uses quasi-community property to make a substantial gift to a third party when inherited or other “pure” separate property was available for the gift, this could be found to be a “deliberate misappropriation” under section 2602. Probably no remedy is available to the spouse of the donor under any other statute or theory.
- California Family Code section 1100(d) provides that “a spouse who is operating or managing a business or an interest in a business that is all or substantially all community personal property has the … of the business or interest.” This rule extends to community personalty that is part of a business also involving community real property.
- Family Code section 2602 provides that the divorce court, in lieu of making a 50-50 division of community and quasi-community property, may invade the portion of divisible property that would have been awarded to a spouse who has “deliberately misappropriated” community and/or quasi-community property (defined §83—H, while separated from W, spent large sums of community money on liquor and the court found no “deliberate misappropriation”]
- Under the earlier rule of exclusive male management, H had a duty to account for community assets known to exist shortly before H and W separated but missing at the time of divorce. If H could not show that the assets were expended for community purposes, he was required to reimburse the community. [ 53 Cal. App. 3d 837 (1975)] This meant that W could collect the value of half of the missing assets from H’s separate property and H’s half of the community property on hand.
- In California, unlike some other states (including Nevada), one spouse alone can use community funds to buy realty. This means that at the time of acquisition one spouse alone can agree to encumber the property with a signed by that spouse only. The theory is that the mortgage does not encumber an interest in property owned by the community but rather that the vendor’s retained security interest never passes to the community in the first place. [
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Chapter Five: Relationships Short of Valid Marriage 38 results (showing 5 best matches)
- Some cases involving voidable marriages have said that such marriages cannot produce true community property. [ 160 Cal. 671 (1911)] However, such decisions can be limited to situations in which an annulment retroactively eliminates community property. No decision has held that community assets cannot exist in a voidable marriage that has not been voided by annulment.
- community property laws applicable to lawful marriages shall apply
- of “quasi-marital” property— property acquired by a spouse that would have been community or quasi-community had the marriage been valid—is still unsettled in California. There appear to be four possible approaches:
- California Family Code section 2251(a), governing division of property at annulment, provides that if the court should find “either party or both parties believed in good faith that the marriage was valid, the court shall … [d]eclare or parties to have the status of a putative spouse.” This would clearly indicate that the “spouse” lacking good faith does not have such status (since it would otherwise be impossible for only one “party” to be a putative spouse). However, section 2251 also provides that when this determination is made, the court “shall divide, in accordance with section 2550 [the equal division statute], that property acquired during the union which would have been community property or quasi-community property” had the marriage been lawful (the statute labels this property
- 184 Cal. App. 3d 1371 (1986), after separating from W-1, H “married” W-2, who had putative spouse status. His earnings while living with her were simultaneously quasi-marital property as to W2 and separate property (under California Family Code section 771) as to W-1. The majority gave W-2 half these acquisitions as §421. The dissent considered W-2 entitled to half as owner plus half of what the majority accorded to W-1 as heir to H’s separate property. (Since W-2 claimed as heir to H’s half of his acquisitions during the “marriage” that would have been
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Chapter Four: Dissolution of the Community 128 results (showing 5 best matches)
- in the community property, except assets held as community property with right of survivorship ( §2). [Cal. Prob. Code §6101(b)] Whereas an aggregate theory is used in dividing the community at divorce, the of community property—a right that the decedent cannot defeat by will even if the latter disposes of no more than half the community estate by value.
- The community estate at divorce may contain one asset whose value is greater than that of all other community property. May the court award this asset to one spouse and order her to give the other spouse a promissory note for the difference, so as to “equalize” the division of property?
- Recall that certain portions of community property recovered for the personal injury of a spouse are in effect converted to separate property at divorce and are awarded entirely to the victim-spouse. ( §§137149.) Thus, community personal injury damages should not be considered in assessing whether an equal division has been made. [Cal. Fam. Code §2603]
- A claimant spouse, say W, may press claims at divorce for half of the community’s right to reimbursement for improvements made to H’s separate personal property with community funds, for gifts of community property not consented to in writing by W, or for H’s failure to account for missing property under his exclusive management. The divorce court can also award damages or make offsets for violation by a spouse of the good faith standard of California Family Code sections 721(b) and 1100(e) (
- The divorcing spouses may agree in their own property settlement on how community assets will be distributed. If neither a spousal agreement nor a divorce court judgment deals with a particular item of community property, the effect of an entry of divorce is to convert it into property. [ §109] This has frequently happened with respect to community interests in spouses’ retirement plans. California Family Code section 2556 gives the divorce court to make a belated division of such omitted property as well as to assign a community debt not previously assigned. The statute states that an equal division is presumptively proper but it allows unequal division in the “interests of justice.” (No such flexibility exists where the asset or debt are timely dealt with by the divorce court.)
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Summary of Contents 30 results (showing 5 best matches)
Index 65 results (showing 5 best matches)
Title Page 1 result
- Publication Date: May 1st, 2004
- ISBN: 9780314152206
- Subject: Family Law
- Series: Gilbert Law Summaries
- Type: Outlines
- Description: The subjects discussed in this Community Property outline include classifying property as community or separate, management and control of property, liability for debts, and division of property at divorce. Also covered are devolution of property at death, relationships short of valid marriage, conflict of laws problems, and constitutional law issues (including equal protection standards, and due process issues).
