California Community Property: Guide to the Course and the Bar Exam
Author:
Myers, John E.B.
Edition:
1st
Copyright Date:
2018
20 chapters
have results for community property
Chapter 5. Characterization and Presumptions 156 results (showing 5 best matches)
- Courts in at least one community property state, California, have rejected the inception of title theory. In California, when real property is paid for in part before marriage from a spouse’s separate funds and in part during marriage from community funds . . . , such property . . . [is] characterized as part separate and part community. Under the California rule, the spouse contributing separate funds is entitled to a pro tanto community property interest in such property . . . in the ratio of the separate investment to the total separate and community investment in the property. Similarly, the community is entitled to a pro tanto community property interest in such property . . . in the ratio of the community investment to the total separate and community investment in the property.
- reimburses separate property contributions to community property. If an item of property is not 100% community property, Section 2640 cannot apply. For example, if an item of property is 50% community property and 50% separate property, Section 2640 does not apply.
- The long marriage presumption was created by the courts. It is not really a separate presumption. Rather, it is an aspect of the general community property presumption. The long marriage presumption applies when it is impossible to determine when an item of property was acquired. The general community property presumption applies to property acquired during marriage. However, there is no presumption regarding property is acquired. Thus, if it not possible to prove the time of acquisition, the general community property presumption does not apply. The long marriage presumption solves the problem by presuming that property during the marriage, thus triggering the general community property presumption.
- Family Code § 2581 provides that property held in joint form is presumptively 100% community property. When § 2581 applies, and its community property presumption is not rebutted, then § 2640 applies to reimburse separate property contributions. When § 2640 applies, the separate property contribution is reimbursed prior to division of the community property.
- The separate property percentage interest is determined by crediting the separate property with the down payment and the full amount of the loan less the amount by which the community property payments reduced the principal balance of the loan. This sum is divided by the purchase price for the separate property percentage share. The community property percentage interest is found by dividing the amount by which community property payments reduced the principal by the purchase price.
- Open Chapter
Chapter 13. When Death Ends Marriage 26 results (showing 5 best matches)
- definition of community property does not include personal or real property acquired when a married couple was domiciled outside California when the property was acquired. Under the Family Code, such property is quasi-community property (§ 125 ). Thus, under the Probate Code, some property acquired while domiciled outside California is community property, while the same property is defined under the Family Code as quasi-community property.
- defines community property to include personal property, wherever situated, acquired by a married person while domiciled in another community property state, that is community property under the law of that state. The Law Revision Commission Comment to Probate Code provides an example: “Property is community property under subdivision (b) if it is the income of separate property and the income of separate property is community property under the laws of the place where the spouse owning the separate property is domiciled at the time the income is earned.” A California probate court applies the law of the other community property state.
- Turning from personal property to real property, Probate Code defines community property to include California real property acquired while a married person was domiciled outside California in a community property state, or a non-community property state where the property is the substantial equivalent of community property.
- also defines community property to include personal property, wherever situated, acquired during marriage by a married person while domiciled in a non-community property state if, under the law of the non-community property state, the property is the substantial equivalent of community property. Given that the definition of community property is increasingly similar to the equitable distribution definition of marital property, it seems likely, under Probate Code , that a California probate judge will define personal property acquired while domiciled outside California as community property regardless of where the parties were living.
- Under Probate Code § 66, quasi-community property is limited to property that is not community property under Probate Code , and that was acquired when a couple was domiciled in a non-community property state.
- Open Chapter
Chapter 4. Introduction to Marital Property 44 results (showing 5 best matches)
- The hallmark of the community property system is that marriage is a partnership, and that property acquired through the effort or skill of either “partner” belongs to the community. Property that is not community is separate. Like the definition of separate property in equitable distribution states, community property jurisdictions define separate property as property acquired before marriage and acquisitions during marriage by gift, descent, or devise.
- American states employ one of two systems of marital property: equitable distribution or community property. In equitable distribution states, “marital property” is divided equitably. In community property states, “community property” is divided equally or equitably, depending on the state. The two systems of marital property are increasingly similar. At this writing, 2018, the nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
- California’s community property system applies to married couples and registered domestic partners. Because domestic partnerships are uncommon, the remainder of the book refers to married couples. You saw in Chapter 3 that it is possible to contract out of the community property system with a premarital agreement. Absent such a contract, the community property system applies automatically—by operation of law—the moment a couple marries.
- Switching from equitable distribution to community property, the history is easier to tell. Today’s community property system derives not from England, where husband and wife were one, and husband was “the one,” but from continental Europe. Louisiana’s community property system devolved from France. Other community property states inherited their systems from Spain. France and Spain found inspiration in early German and Roman law.
- Across the United States, marital/community property is generally defined as any property, real or personal, acquired during marriage through the time, effort, energy, or skill of a married person. As explained by the New York Court of Appeals, “Marital property is broadly defined as all property acquired by either or both spouses during the marriage.” The Texas Court of Appeal wrote, “Under Texas law, property possessed by either spouse during or on dissolution of the marriage is presumed to be community . . . .” Marriage is an economic partnership, and property generated by either partner belongs to both. Thus, a spouse’s paycheck is marital/community property. As well, pension benefits that are derived from employment are marital/community property, to the extent acquired during marriage.
- Open Chapter
Chapter 7. A Potpourri of Characterization Issues 78 results (showing 5 best matches)
- If the loan was used to purchase property— , a car—the car falls under general community property presumption. The general community property presumption persists if title to the car is put in one spouse’s name alone. applies to characterize the car as community property. If one spouse wants to claim that the car is separate property, the separatizer has to rebut the community property presumption. The general community property presumption is rebutted by tracing to separate property. The § 2581 presumption is rebutted by tracing
- Commingling refers to a situation in which community property funds and separate property funds are deposited in a bank account. Commingling does not change the character of money in an account. Thus, if $1,000 of separate property, and $1,000 of community property are deposited in an account, the funds retain their character as separate property and community property.
- The tracing technique used to rebut the community property presumption with loans, items purchased with loans, and credit acquisitions, is the intent of the lender test. The separatizer offers evidence that the lender relied for repayment on separate property. If the lender relied on separate property for repayment, then the loan was separate property, and items purchased with the loan are traceable to separate property, rebutting the community property presumption.
- In divorce proceedings, if the parties cannot agree on how to divide community property, the court divides the community property equally (Family Code § 2550 ). When personal injury damages are community property because the cause of action arose during marriage and before separation, Family Code § 2603(b) creates an exception to the equal division requirement. Section 2603(b) mandates that 100% of the community property personal injury money be assigned to the injured spouse. The idea behind § 2603(b) is that the injured spouse’s need for the money outweighs the principle of equal division of community property. Section 2603(b) allows the judge to depart from the rule that 100% of community property personal injury damages must be awarded to the injured spouse, when circumstances indicate the injured spouse does not need the money. The court considers how much time has gone by since the injury, as well as the economic circumstances and
- When a spouse owns a separate property business or asset that increases in value during marriage due in part or in whole to the efforts of the owner spouse, California provides that the increased value is community property to be divided on divorce. The business itself remains separate property. It is the increased value attributable to efforts of the owner spouse that is community property.
- Open Chapter
Chapter 11. Division of Property on Divorce 86 results (showing 5 best matches)
- A California Superior Court judge who is dividing community property can enter orders that change title to California community real property. A California judge cannot change title to out of state real property. Regarding out of state community property, Family Code § 2660(a) provides, “The court shall, if possible, divide the community property and quasi-community property in such a manner that it is not necessary to change the nature of the interests held in [out of state] real property.” The court can order the parties to convey out of state property, and impose sanctions for failing to obey the court’s order.
- Improvements are discussed in § 7.8. After January 1, 2005, a spouse who uses their separate property to improve the other spouse’s separate property has a right to reimbursement (Family Code § 2640(c) ). After 2001, the community is entitled to reimbursement when one spouse uses community property to improve the other souse’s separate property. The community is entitled to reimbursement when a spouse uses community property, without the consent of the other spouse, to improve the spouse’s separate property.
- To equalize the division of community property between the parties, Husband will pay Wife the following amount: $9,000.00. This payment shall be made in nine monthly installments of $1,000.00, without interest. The first installment shall be paid by Husband on November, ___. The parties understand that payment of $9,000.00 may not constitute the equal division of community property and community debt required by California law when a judge divides the community property and community debt. The parties also understand California law does not require equal division of all community property and debts when the parties reach agreement such as the agreement formalized in this Agreement. Both parties understand the full extent of their own and the other’s property. Both parties are represented by counsel. Both parties are fully advised about the financial aspects of this Agreement. Both parties agree that any mathematical inequality in the division of community property and community...
- provides that community property transferred into a revocable trust remains community property, unless the trust instrument provides otherwise. When a married couple funds an irrevocable trust for the benefit of a third party, the trust property is not community property.
- the community property to satisfy a debt incurred by either spouse before or during marriage (§ 910 ). After the court divides community property on divorce, § 916 provides that the half of the community property awarded to the non-debtor spouse is
- Open Chapter
Appendix. CALIFORNIA FAMILY CODE 148 results (showing 5 best matches)
- Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.
- If the division of property is in issue, divide, in accordance with Division 7 (commencing with Section 2500), that property acquired during the union which would have been community property or quasi-community property if the union had not been void or voidable. This property is known as “quasi-marital property”.
- Notwithstanding subdivision (a), if the spouse of the injured person has paid expenses by reason of the personal injuries from separate property or from the community property, the spouse is entitled to reimbursement of the separate property or the community property for those expenses from the separate property received by the injured person under subdivision (a).
- For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:
- The property divided pursuant to Section 2251 is liable for debts of the parties to the same extent as if the property had been community property or quasi-community property.
- Open Chapter
Chapter 12. Annulment 5 results
- provides for division of property in annulment cases. Because the marriage is annulled, the parties do not acquire community property. At the request of a putative spouse, the court divides property that would have been community property if the marriage had been valid. The property is called quasi-marital property, and is treated the same as community property.
- If the division of property is in issue, divide . . . that property acquired during the union that would have been community property or quasi-community property if the union had not been void or voidable, only upon request of a party who is declared a putative souse under paragraph (1). This property is known as “quasi-marital property.”
- In divorce, the court divides the community property. What happens in annulment? How does a court divide property when a marriage is void or voidable? California’s answer is the putative spouse doctrine.
- Howard, age 72, had terminal cancer and severe dementia caused by Alzheimer’s disease. Howard had several adult children. Howard lived at home. His daughter Nancy was his primary caretaker. Nancy went on a one-week vacation, and left Howard in the care of Nidia, age 58. During the one-week vacation, Nidia married Howard and transferred all his assets into her name. Howard died a few months later. Following Howard’s death, Nancy brought an action seeking to have the marriage annulled because Howard was mentally incompetent to consent to marriage. Nancy’s suit sought to nullify the transfers of property from Howard to Nidia. Howard’s will was admitted to probate. The will left his property to his children. In probate court, Nidia filed a right of election as a surviving spouse seeking a portion of Howard’s estate. Howard’s children and his doctors provided evidence that, at the time of the wedding, Howard had advanced Alzheimer’s, and was incompetent. Nidia provided evidence that she...
- . Yet, void marriages sometimes last years, and it is useful to bring a nullity proceeding (or a divorce) so a court can clarify the parties’ marital status and adjudicate issues pertaining to children, support, and property.
- Open Chapter
Chapter 9. Debts 53 results (showing 5 best matches)
- An activity for the benefit of the community is one that supports or enhances the community. Thus, going to work is an activity for the benefit of the community, as is driving to the store to buy milk for the baby. Obviously, committing a tort is not an activity for the benefit of the community, but Section 1000 focuses not on the tort, but on whether the tort occurred during an activity benefitting the community. If so, the tort debt is satisfied first out of community property. If there is not sufficient community property to fully pay the debt, the creditor turns for the balance to the tortfeasor’s separate property. If the tort occurred while the tortfeasor spouse was performing an activity not for the benefit of the community ( , driving to a drug dealer to buy illegal drugs), payment comes first from the tortfeasor’s separate property, and second from community property.
- Except as otherwise expressly provided by statute, the community estate [community property and quasi-community property] is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.
- A premarital debt for child or spousal support from a different relationship is like any other debt. All the community property is . The separate property of the obligor/debtor spouse is liable for the debt (§ 913(a) ). The separate property of the non-debtor spouse is not liable for the debt (§ 913(b)(1) ). Section 915 applies when the creditor satisfies the debt out of community property, rather than taking available separate property of the debtor. When this happens, the non-debtor spouse may seek reimbursement of the community property used to pay the obligation.
- If property in the community estate is applied to the satisfaction of a child or spousal support obligation of a married person that does not arise out of the marriage, at a time when nonexempt separate income of the person is available but is not applied to the satisfaction of the obligation, the community estate is entitled to reimbursement from the person in the amount of the separate income, not exceeding the property in the community estate so applied.
- Examples: Nancy and Ron are married. During marriage, Ron incurs a debt. Family Code § 910 provides that all of the community property is liable for the debt—Not half, all. Before marriage, Nancy incurred a debt. All of the community property is liable for the debt.
- Open Chapter
Chapter 8. Transmutations 14 results (showing 5 best matches)
- During marriage, a couple is free to change the character of property. Thus, a couple may change separate property to community property, community property to separate property, or separate property of one spouse to separate property of the other (Family Code § 850). Such changes are called transmutations.
- In one pre-1985 case, for example, Husband owned real estate and personal property as separate property. After Husband died, his widow claimed that during the marriage, Husband transmuted the property to community property. The widow testified that Husband told her, “Now that we are married, we are partners, and marriage is a partnership. Everything I have is ours, and everything you have in ours. We are partners. Everything is 50–50.” The court ruled this language sufficient to transmute Husband’s separate property into community property.
- , Husband owed state taxes. Wife and Husband learned the Board of Equalization intended to garnish Wife’s wages to pay Husband’s tax debt. Wife’s wages are community property, and community property is liable for the debts of either spouse (Family Code § 910 Chapter 9). To avoid the tax collector, Wife and Husband entered a transmutation agreement, converting wife’s wages to her separate property. Separate property is generally not liable for the debts of the spouse (§ 913(b)(1))
- (“Married persons may, through a transfer or an agreement, transmute—that is change—the character of property from community to separate or from separate to community.”).
- survive. Husband instructed various stock brokers, in writing, to “transfer” his separate property stock to his wife. Husband recovered, but the marriage ended in divorce. In the divorce, Wife claimed Husband’s written instructions to “transfer” stock to her satisfied the writing requirement of § 852(a) , Husband singed a deed transferring his separate real property to himself and his wife as community property. A deed, signed by the grantor, is an express declaration that ownership is changed, satisfying § 852(a).
- Open Chapter
Chapter 1. Introduction 10 results (showing 5 best matches)
- Welcome to community property! As you know, California is a community property state. The California Bar Examination tests community property. The fact that the Bar tests community property is probably the reason you are reading this book. Of course, it is possible you have had an interest in community property since you were a little kid, but I doubt it. More likely, you are enrolled in community property to pass the bar, and that’s a perfectly good reason! Some readers are interested in practicing family law, and, for them, understanding community property is a must. Even if your only reason for taking the course is the bar, you will find knowledge of community property relevant to many areas of practice, not to mention,
- The community property system applies to married persons. The moment a couple marries, community property law applies by operation of law, unless the couple opts out of the community property system by agreement.
- Most of the book is devoted to the details of California community property law. Understanding community property, however, requires an introduction to aspects of family law that are not directly related to property. Chapter 1 discusses a number of these non-property aspects of family law. Chapter 2 addresses contracts between unmarried cohabitants. Chapter 3 deals with premarital agreements. Chapter 12 covers annulment. The balance of the book focuses on community property.
- The RO restrains a parent from removing a child from California without permission. The RO limits the ability of spouses to engage in major financial transactions without the consent of the other spouse or court order. It will not surprise you to learn that the RO limits the ability of spouses to sell or encumber community property during the divorce process. It will surprise you to learn that the RO places similar limits on a spouse’s ability to deal with their separate property! Why the limit on separate property? Because, until the parties or the court make a definitive finding, what one spouse believes is their separate property may, in the eyes of the other spouse, be community property. The RO calls a halt to major financial transactions until the property is characterized and divided by agreement or court order.
- Most statutes regarding community property are located in the Family Code. The Family Code is cited throughout the book. Other California codes and federal statutes are cited when appropriate. Sections of the Family Code and the Probate Code are found in the Appendix.
- Open Chapter
Chapter 14. Community Property Exam Questions 155 results (showing 5 best matches)
- Characterize on death. PC § 28(a) does not apply because they were domiciled in Texas when they acquired the property. PC § 28(b) does apply, rendering the property CP in probate proceedings. Section 28(b) applies because they were domiciled in Texas when they acquired the property, and because Texas is a community property state. Assuming the property would be CP under Texas community property law, it is CP under § 28(b).
- The Sacramento home is in joint tenancy, so § 2581 applies, and there are no facts to suggest the § 2581 community property presumption is rebutted. The home is 100% community property. The down payment was with separate property, so discuss § 2640 and the right to reimbursement. The mortgage payments are with community property.
- The rents, issues and profits of community property are community property. Stock options get special treatment under the rules when the stock options are granted during the marriage but are not exercisable until after the marital community ends. It first must be determined when the marital community ended.
- Paula invested $25,000 of community property, and lost the money. Was her use of the money a breach of fiduciary duty? Spouses have equal management and control of community property (Family Code § 1100. Text § 10.1). According to Family Code § 1100(a), a married person can spend or invest community personal property without the consent of the other spouse. Doing so may not be a good idea from the stand point of marital harmony and good communication between spouses, but the law allows one spouse to unilaterally sell or invest community property. The fact that the investment turned out badly does not necessarily mean Paula breached her fiduciary duty to Nick. Mere negligence in handling community property is not a breach of fiduciary duty. Even if Paula’s investment decision was negligent, it was probably not a violation of her fiduciary duty. On the other hand, when a married person’s handling of community property is grossly negligent or reckless, a court is likely to find a...
- The motorcycle. Title in Hal’s name alone does not control. The motorcycle was acquired during marriage, by a married person, while domiciled in California, thus the motorcycle falls under the general community property presumption (§ 760). The down payment was with Hal’s separate property inheritance. The balance of the purchase was with a loan. If Hal wants to claim the loan was separate property, he needs to use the intent of the lender test (§ 7.6). There are two approaches to the intent of the lender: (1) The lender relied solely on separate property for repayment of the loan, the case, or (2) The lender relied primarily on separate property for repayment of the loan, the case. Hal won’t be able to meet either approach because the facts tell us that the lender relied on Hal’s “good credit.” A married person’s credit worthiness belongs to the community. Hal won’t be able to prove that the lender relied primarily or entirely on separate property. Thus, the loan was community
- Open Chapter
Chapter 10. Management and Control 30 results (showing 5 best matches)
- sets forth the monetary remedy for a breach of fiduciary duty that impairs an interest in community property. The normal remedy is 50% of the value of the community property, plus attorney fees. Section 1101(h) provides that if the breaching spouse acted with malice, oppression, or fraud, the remedy is 100% of the value of the community property.
- Married couples share equal management and control (M&C) of community real and personal property (Family Code §§ 1100(a) ). Prior to January 1, 1975, only husbands had M&C of community property. Today, equal M&C applies regardless of whether property was acquired before or after January 1, 1975.
- provides, “either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.” A spouse can sell community personal property without the consent of the other spouse. Section 1100(a) refers to this authority as “like absolute power of disposition.” Regarding community real property, both spouses must execute any instrument that conveys such property (§ 1102(a)).
- An unauthorized gift of personal property must be returned. Thus, if husband gives his sister a community property painting, and wife moves to set the gift aside, the sister has to return the painting. If a gifted item is used up, destroyed, lost, or, in the case of money, spent, the non-consenting spouse has a cause of action against the donor spouse for half the value of the item.
- Both spouses have M&C of community real property (Family Code § 1102(a) ). Both spouses must join in any instrument by which the property is sold, encumbered, or leased for longer than a year (§ 1102(a)).
- Open Chapter
Chapter 3. Premarital Agreements 32 results (showing 5 best matches)
- A premarital agreement can opt entirely or partially out of the community property system. For example, Abe and Beth are planning to marry. Abe owns a business. Abe understands that once he is married, any increased value of his separate property business that is attributable to marital efforts will be community property ( § 7.2). Abe wants the business, and any increased value, to remain his separate property. Abe and Beth can execute a premarital agreement to accomplish that goal, while otherwise remaining in the community property system. Before marriage, Beth bought a home. She makes monthly mortgage payments with her paycheck. Once Beth and Abe marry, Beth’s paycheck is community property, and if she makes mortgage payments with her income from work, the home will become partly community property and partly separate property ( § 5.17). Beth would like the home to remain entirely her separate property. This can be achieved in a prenup.
- The most common reason for a premarital agreement is to opt out of California’s community property system. ( ). Under a properly worded premarital agreement, property that would be community remains the separate property of the spouse who earned it. , the Supreme Court wrote, “From the inception of its statehood, California has retained the community property law that predated its admission to the Union . . . . At the same time, applicable statutes recognized the power of parties contemplating a marriage to reach an agreement containing terms at variance with community property law.” as to their property rights, both as to property then owned and as to property and earnings that may be acquired during the marriage.”
- If the agreement opts out of the community property system, all of the wealthy party’s accumulations during marriage remain separate property. There will no community property to divide equally if the marriage dissolves. As a result, at divorce, the rich party remains rich, and the poor party is out of luck. This strikes some as unfair. On the other hand, if the less well-off party signed a prenup with eyes wide open, is it unfair to expect
- The law regarding management and control of community property is addressed in Chapter 10. A premarital agreement can change the rules governing management and control.
- Debra and Dave have been married 10 years. They have one child, who is nine. Four days before their wedding, the parties signed a premarital agreement. At the time, Dave was represented by counsel; Debra was not. The premarital agreement, which was drafted by Dave’s attorney, stated that both parties had “fully disclosed his or her present approximate net worth,” that “each party had full opportunity to review the agreement,” and that “both parties acknowledge their understanding of the effect and content of the agreement.” The agreement listed Dave’s separate property as six parcels of real property. The agreement did not list the values of the properties. Debra had no assets at the time of marriage. The agreement provided that neither party would acquire any interest in the property of the other, whether that property was acquired prior to or during marriage. During the marriage, Dave’s income was derived entirely from buying and selling real property, all of which was titled in...
- Open Chapter
Chapter 6 Pensions and Other Employment-Related Benefits 42 results (showing 5 best matches)
- A life insurance policy is a community asset to the extent the policy is paid for with community property. A term life policy covers a specific term, for example a year. With a term policy, there is no cash surrender value. At the end of the term, there is no value unless the policy is renewed for another term. When an insured dies during a term paid for with community property, the proceeds of the policy are community property. If a couple divorces, the insured spouse is, of course, alive. Thus, there are no proceeds of the policy.
- A whole life insurance policy, unlike term insurance, has a cash surrender value in addition to the proceeds of the policy on death. The cash surrender value builds up from premiums. To the extent the cash surrender value is earned with community property, it is community property, divisible on divorce.
- A pension is community property to the extent it is acquired during marriage, and prior to separation. Consider, for example, Mary, who enlisted in the Navy at age 18, right after high school. Mary served twenty years, and retired at 38, at the rate of chief petty officer. At 39, Mary married Mike. Five years later, they divorce. Mary’s Navy pension is entirely her separate property because it was acquired prior to marriage. The fact that Mary receives pension checks during marriage does not change the fact that the pension was earned before marriage. Now consider Sue and Tom, who fell in love and married during college. Following graduation, Sue entered the Navy at age 22, as an officer. After thirty years of service, Sue retired at 54, at the rank of vice admiral. Two years after retirement, Sue and Tom divorce. Sue’s entire pension is community property because it was acquired entirely during marriage. Finally, consider John and Kim. Upon graduation ...part her separate property...
- With defined benefit plans, division into separate and community components is typically accomplished with the “time rule,” sometimes called the “coverture fraction.” The numerator of the fraction is years of service during marriage. The denominator is total years during which the pension was earned. For example, Sue retired after twenty years with the California Highway Patrol. During ten of those years, Sue was married to Paul. The numerator of the fraction is 10; the denominator is 20. Half of Sue’s pension is her separate property. Half is community property. Sue owns half of the community property portion. In the end, Sue is entitled to 75% of the pension, and Paul 25%.
- In addition to learning about a couple’s pensions, and calculating community property shares, attorneys help clients decide how to divide community pension interests. There are several ways divorcing couples can handle pensions.
- Open Chapter
Table of Contents 50 results (showing 5 best matches)
- —Reimbursement of Separate Property Contribution to Community Property
- § 7.8(b)One Spouse Uses Community Property to Improve the Other Spouse’s Separate Property
- § 7.8(c)One Spouse Uses Community Property to Improve Her/His Own Separate Property
- § 7.8(d)One Spouse Uses Her/His Separate Property to Improve Community Property
- § 11.4What Property Can Creditors Attach After the Court Divides Community Property?
- Open Chapter
Index 14 results (showing 5 best matches)
Summary of Contents 3 results
Chapter 2. Cohabitation Agreements 7 results (showing 5 best matches)
- Half a century ago, living together in an intimate relationship outside marriage was “living in sin.” Today, it is common for lovers to live together. When a non-marital cohabiting relationship ends, former lovers do not owe each other support. The system of community property does not apply to unmarried cohabitants. When cohabitants have children, the rules for custody and child support are the same as for married parents.
- agreement, a couple can contract regarding how property is owned. The contract may detail whether earnings are considered property of the earner or the couple. The couple may craft a “pooling agreement,” if they like. A contract can specify that support obligations are or are not created. The parties can agree that one will perform services, paid for by the other.
- A resulting trust arises by operation of law, when property is transferred to a person who is operating in good faith, but who is not the intended owner. Unlike a constructive trust, which is a remedy for intentional wrongdoing, a resulting trust carries out the intent of the parties, and restores property to the true owner.
- the Supreme Court referred to resulting and constructive trusts as possible remedies. A constructive trust is an involuntary “trust” imposed by a court on someone who has misappropriated property. The purpose of the trust is to prevent unjust enrichment. The wrongdoer is compelled to transfer the property to the rightful owner. A constructive trust is not based on the intention of the parties. It is imposed to remedy a wrong. (
- Unmarried cohabitants can contract with each other regarding property and support. The leading case is
- Open Chapter
- Publication Date: March 7th, 2018
- ISBN: 9781640206939
- Subject: Family Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This book helps students enrolled in community property courses succeed on law school exams and prepare for the Bar Exam. It describes community property law in clear, concise language and contains questions so readers can apply the law. It includes actual Bar Exam questions, as well as actual law school exam questions, which are followed by analysis.