Community Property in a Nutshell
Author:
Carrillo, Jo
Edition:
4th
Copyright Date:
2018
20 chapters
have results for Community Property in a Nutshell
Chapter 1. Preliminary Matters 105 results (showing 5 best matches)
- The more popular term community property is used in this Nutshell, however, Wisconsin uses the term “marital property” to describe property owned by a married couple (as opposed to a larger community, such as the entire family).
- In the event of dissolution, the modern trend is to encourage the parties to negotiate a partition through bargain and exchange. If the parties cannot agree on an outcome, state statutes typically require a family court to step in so as to partition the community property, or any community property share of an asset that is concurrently owned by the community and one or both separate property estates. Some states mandate the family court to partition community property in equal, fifty-fifty shares. Other states allow the family court discretion to divide community property equitably, depending on the circumstances of the case.
- Be aware that legislatures are reluctant to retroactively change vested community property interests. In states where community property is protected by the state constitution, a legislature lacks authority to retroactively change property rights. But even in states where the community property system is entirely or primarily legislative, retroactive changes can cause characterization disputes between the spouses and between the spouses and third party purchasers and creditors. The practical result of retroactive change is that each change in the definition of community property may create a new category of community property that gets added on to the categories that existed before. Thus, historical analysis is often a tool in community property law.
- All U.S. community property states characterize the property that either spouse brings to the marriage as separate in character. This legal outcome derives from the ganancial nature of the state’s community property system. A minority of states characterize separate property rents, issues and profits as community property during the marriage by a civil law rationale called usufruct. A majority characterize the same as separate property during marriage. Here, the rationale derives from the common law, and it has to with trust law, which permits tracing and accounting as an ordinary part of ongoing property management.
- Despite major trends toward divorce reform in the U.S., misunderstandings about the community property system versus the common law system are widespread and continue to persist. Prior to 1948, for example, acquirers and possessors of community property had federal income, estate, and gift tax advantages that did not exist for a domiciliary of a common law (separate property title) state. In order to gain those same advantages, the states of Michigan, Nebraska, Oklahoma, Oregon and Pennsylvania and the (then) Territory of Hawaii adopted community property systems. In Pennsylvania, the community property statute was declared unconstitutional. In the other states and in Hawaii the community property system was repealed shortly after the 1948 amendments to the Internal Revenue Code (I.R.C.) eliminated the tax advantages that the adoption of community property had meant to address by permitting joint income tax returns, a marital deduction for both gift and estate taxes, and the gift-...
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Chapter 4. Separate Property 212 results (showing 5 best matches)
- States split on how to characterize money and property received by a spouse during marriage in settlement of a personal injury claim. Some states characterize all or some personal injury awards as separate property. Others characterize the same as community property or special community property. Special community property is assignable to the injured spouse in a dissolution unlike ordinary community property which is divided in half.
- Louisiana defines separate property in
- Imputed contributory negligence in the context of marriage was sometimes referred to as the community property defense. The community property defense became available when one spouse’s personal injuries were caused by a third party and the other spouse’s contributory negligence. The defense worked like this. If one spouse was injured in an accident in which the other spouse was adjudged contributorily negligent, the community property defense barred the community estate from recovering damages. The policy underlying the community property defense was that a negligent spouse should not benefit from his or her own negligence.
- Additionally, the general rule is that the mere act of commingling separate property with community property does not change the character of the commingled property, absent confusion. If the spouse,
- Statutory definitions of community property put a focus on
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Preface to the Fourth Edition 5 results
- Community Property in a Nutshell,
- A community property system is a public institution for administering property rights between married persons. The premise of a community property system is that spouses are partners, and as such they should share ownership of property that they acquire during marriage by effort. The legal idea of intimate partners who work together is one whose time has come. And yet, only a minority of U.S. states allow for community property between married persons.
- Each chapter is divided into three parts. Part A overviews the chapter topic. Part B details the law. Part C presents specific statutes and cases from each of the nine U.S. community property jurisdictions.
- The audience for this work is students and state legislators. Students because they will be the lawyers and judges of the future. And state legislators because the community property terrain is ever-changing, and law practice (which is often discretionary and oral) too often contradicts the written rules of legal doctrine and policy. It seems useful, therefore, to provide a handy reference to the written law for state legislators who seek to modernize the legal institutions of marriage and divorce.
- I wish to thank the University of Michigan Law Library for the hospitable and extended use of its on-site collection. A special thanks to RCV, MCO, LJO, and KBV.
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Chapter 12. Federal Problems 103 results (showing 5 best matches)
- There is seldom community property unless and until a married couple has both married and establish domicile in a community property state. Just as there is no community prior to marriage, there is no community without domicile. Minor exceptions do exist. A wedding gift to a couple about to be married can be community property in a minority of jurisdictions; or, a couple can marry with the plan to soon after establish a new domicile in a community property state.
- Ultimately, a community property system is a public institution for assigning property rights during marriage. Fairness, choice, agreement, financial accountability, financial disclosure, stewardship—these are principles that any community property system develops to cast light on legal issues that can arise between intimate partners. The time has come to embrace these principles in the context of marriage and intimate partnership more generally. My hope is that this Nutshell is one small step in that direction.
- Definitions of community property laws are based upon the domicile of the parties at the time that property is acquired. Generally, all property acquired during marriage while domiciled in the state is community property under the laws of that state. Thus, if a married couple change their domicile from one community property state to another, they may acquire different categories of community property. When this happens, the married persons may own State A community property—governed by State A’s community property rules—and State B community property—governed by State B’s community property rules.
- Whenever spouses from a community property state migrate to a non-community property state, those spouses bring with them the protections of the community property system under which they acquired property during their marriage. If their marriage ends, their (non-community property system) attorneys too often neglect the community property ramifications of their client’s divorce or estate. By ignoring the community property era of a marriage’s existence, attorneys in non-community property states overlook (or even abandon) the significant advantages that their clients (and their families) gained while domiciled under their former community property regime. Such neglect exposes these attorneys to malpractice liability.
- Community property remains community property when a married person changes domicile to a separate property state. The problem of adapting a separate property system to community property is similar to converting meters into inches without using fractions or decimals: The result is only approximate. Thus, the typical, and most correct, separate property state treatment of existing community property is to consider it as a form of the common law tenancy in common, giving equal shares to each party. This eliminates some of the attributes of community property such as management and control rights and duties, just as whole number usage eliminates fractions or decimals in a metric conversion.
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Chapter 9. Divorce 188 results (showing 5 best matches)
- There are many reasons to use a lien on one spouse’s existing separate property to protect and secure the other spouse’s community property interest. Two specific reasons stand out. A lien on one spouse’s separate property may be a fair way to secure a community property interest in a separate property asset that the community helped acquire. Or a lien may be necessary to enforce payment of support obligations.
- Legal separation terminates the community regime in all states. Physical separation terminates it in some states. A final dissolution judgment divides property. Only a court judgment terminates a marriage by changing the parties’ status from married to single. Among the community property states, Texas is alone in permitting informal marriage. No community property state recognizes informal (sometimes mislabeled common law) divorce.
- Even in these states, however, courts have discretion to impose an equitable lien on the separate property of either spouse so as to effect a division of the community property. The lien on separate property is a device to protect and satisfy the community property interest of the spouse who does not own the separate property asset. A majority of states employ the device liberally by how they permit a court to impose an equitable lien upon either spouse’s separate property or marital property award.
- If an asset is omitted from the division of the community, whether because of concealment, honest error, or difference of opinion as to its character, the asset is converted from community property to tenancy in common by the divorce of the parties. A party may also typically file a motion for a postdissolution adjudication of the parties’ rights in the omitted asset. Statutory limitations apply.
- The community property system admits to it, by default, a married person who is domiciled within the jurisdiction. However, certain events, enumerated next, end or significantly alter the way in which the community property rules apply to that person.
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Chapter 10. Death 144 results (showing 5 best matches)
- In community property states, when a married decedent dies intestate, (only) one-half of the community property but all of the separate property
- Courts often indulge in the presumption that the testator intended to dispose only a portion of the property which he or she owned, i.e., his or her one-half of the community, if the asset is community property. A bequest of “my automobile” is often construed as “my community property interest in our automobile.” A bequest of “one-half of my estate to my brother, the other half to my wife” may be construed to give the brother one fourth of the community property since the decedent had the right to dispose of only the decedent’s one-half of the community estate.
- A note on terminology: A decedent spouse’s community property share is “former community property” rather than community property. Nevertheless, for efficiency of expression, here, former community property is called community property.
- expressly converts into California community property, for purposes of the California Probate Code,
- In a community property state, the surviving spouse owns one-half of the community property. The decedent has the right to dispose of his or her one-half by will, as discussed above. If the decedent dies intestate, only one-half of the community property (the decedent’s one-half) descends by intestate succession. Some of the variations are as follows:
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Chapter 3. Community Property 235 results (showing 5 best matches)
- The cornerstone of a community property system is the sharing principle. All U.S. community property statutes employ it in an “all property except
- Otherwise, the basic Louisiana community property statute codifies the rule that donations (gifts) made to the spouses jointly are community property in character. (See the
- “In a proceeding for dissolution
- In a community property state, because the deposit of joint depositors who are married to each other could be community or separate in character, a superseding community property presumption for sums on deposit in a demand deposit account resolves what could be vexing ownership issues.
- The difference between the two outcomes is procedural as well as practical. In a state with an acquisition-based community property presumption, such as California, the community property claimant bears the burden of proving acquisition during marriage. Only after that initial hurdle is cleared can the judge raise the general community property presumption within the bounds of the law. Whereas in a state with both an acquisition-based and a possession-based community property presumption, such as Texas, the community property claimant has an option to move for one or the other community property presumption.
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Chapter 6. Characterization Problems 346 results (showing 5 best matches)
- Moreover, if the spouses use a community property agreement to dispose of sums on deposit by right of survivorship, the account and the sums remain community in character. The account is community property because it is included in a community property agreement; the sums on deposit are community property because they are acquired during marriage absent proof to the contrary and held within a community property account.
- For property purchased marriage with a separate property loan that is repaid the marriage with community property funds, apportionment theory gives the community a pro tanto share based on its actual contributions to purchase. The community’s pro tanto share of ownership determines the community’s interest in appreciation or depreciation. Reimbursement theory, by contrast, repays the community for its contributions to purchase.
- All property acquired after marriage is presumptively community property, even property in TIC or JTWROS title form.
- A party buys an asset outright prior to marriage. The asset is separate property from the date of the marriage forward. Or, a party buys an asset with money earned during marriage while domiciled in a community property state. The asset is community property in character.
- The majority American approach, characterizes separate property rents, issues, and profits as separate property during the continuance of the marriage. In the context of a separate property business, the addition of community labor commingles not the business itself, but the business profits. When that happens, the community is permitted to make a claim for excess profits. If community labor was below the legal standard for assigning excess profits to the community, the community still has a right to seek a reimbursement for its net labor contribution.
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Chapter 8. Liabilities 229 results (showing 5 best matches)
- The distinction between community and separate liabilities was historically more important (and more frequently litigated) in Washington than in other community property states. This is because—again historically—most separate debts could not be collected from community property and most community debts could not be collected from separate property. The source of the relative immunity of community property was the judicial interpretation of a statute that subjects community real property to mechanics’ liens and materialmen’s liens obtained for community debts.
- In other words, New Mexico is a managerial approach state for community debts. But is it one for separate debts as well? How much of the community property can a creditor of an enumerated separate debt reach? Case law answers that (even) a spouse who incurs separate debts is a manager of the community. As a manager that spouse can incur debts that ultimately expose the community property to the reach of creditors. When that happens, however, only one-half of the community property is made available.
- In a minority of U.S. community property states, one-half of the community assets may be deemed exempt for purposes of satisfying a separate tort judgment. If so, the judgment creditor can reach the tortfeasor spouse’s separate property first, and the tortfeasor’s one-half interest in the community property second, but the tortfeasor cannot reach the non-tortfeasor spouse’s one-half of the community property. New Mexico achieves this result by statute. Washington achieves it by case law in certain circumstances.
- , supra, involved a married couple that hosted a party on their community property sail boat (a community activity, a community purpose, hosted on a community asset, and paid for with community funds). After the party, one spouse trespassed onto a third person’s boat and committed a violent act. The tort was deemed a separate tort. The tortfeasor had no separate property with which to satisfy the tort judgment. The creditor sought to reach the tortfeasor’s one-half of the community personal property. The previous rule would have shielded all community property from the reach of a separate tort judgment creditor.
- If community property is reached to satisfy a separate tort judgment, a right to reimbursement in the community typically arises by equitable lien. The purpose of the community lien is to ensure that the innocent spouse receives the same amount of community property he or she would have received had the tortfeasor’s one-half of the community property not been used to satisfy the separate tort judgment.
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Chapter 7. Management and Control 197 results (showing 5 best matches)
- Primary management and control for a community property business.
- A one hundred percent (100%) recovery, when the marriage is intact, prevents a de facto managing
- In
- In most U.S. community property states one spouse has a positive right to manage community personal property; and the nonacting spouse has a corollary statutory to avoid certain nonmutual transfers. Litigated nonmutual transfers typically involve gifts and sales of furniture or family clothing to third parties.
- Over a century of case law in each of the community property jurisdictions teaches that at the end of a marriage, given the nature of the dissolution process, each spouse may, should, and probably will be called upon to account for his or her stewardship of the community property.
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Chapter 2. Contractual Modification 210 results (showing 5 best matches)
- in 1949, 1980, 1987 and 1999 were necessary to allow for spouses to convert separate property to community property. Texas law now provides that
- A transmutation changes the character of property, and thus alters the spouses’ marital property rights as between themselves and, sometimes, third parties. Changes from community property to separate property, separate property to community property, or the separate property of one spouse to the separate property of the other spouse are all possible. Check to determine whether one or all of the three possible types of transmutations are allowed in the jurisdiction.
- Generally, changes in form are not enough to transmute property, nor is the act of commingling one character of property with another character. As with the other U.S. community property states, Arizona follows the general rule that community and separate property can be commingled without losing their character. The doctrine of confusion provides a limit to this rule: at the point that the separate property component in commingled property can no longer be identified, the entire property becomes community by operation of law.
- What can a spouse whose name does not appear on a title document do to protect a community property interest in real estate relative to third parties? This is potential trap for the unwary since married persons can and do take title to community property in one spouse’s name alone.
- § 40–3–14 (1978) arguably could be interpreted to effect a transmutation by law, especially in light of case law indicating that an asset title in one spouse’s name alone raises a separate property presumption as to that asset. . But at least three strong policy arguments push against such an interpretation. One, community property states generally require that transmutations be intentional, not accidental. Two, community property codes employ community property presumptions, not separate property presumptions. Three, community property systems are primarily organized to protect the community. For the above reasons, New Mexico would be well served by a statutory provision abrogating
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Chapter 5. Joint Tenancy Meets Community Property 216 results (showing 5 best matches)
- an asset acquired during marriage in any joint form title is presumed to be community property
- The problem (very simply stated) took this form: The couple used community property funds to purchase property that they then titled in JTWROS. Under general common law principles, the title form
- Another answer is that since it appears under the law that a JTWROS title between married persons is presumptively community property both for purposes of dissolution and death, the Washington approach arguably simplifies, rather than complicates, the interface between the common law titles and the state community property system. In Washington, j
- A TBE cannot be created in any of the community property jurisdictions. However, once validly created in a state that allows its use, a TBE may be recognized as valid in the community property state, depending on countervailing state policies that protect creditors’ rights.
- recognizes both traditional community property and CPWROS:
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Chapter 11. Nonmarital Relationships 100 results (showing 5 best matches)
- In the event of death, there may be multiple survivors, one of whom is a lawful spouse and the other a putative spouse. Where there is only one survivor, the putative spouse doctrine offers that survivor the protections that a lawful spouse would otherwise enjoy under the family law. Where there are two or more survivors, courts have divided on how the
- Where two marriages are alleged, the most recent marriage is presumptively valid against each marriage that precedes it, unless the party who asserts the validity of an earlier marriage proves otherwise.
- “if a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall declare the party or parties to have the status of a putative spouse.”
- Partnership theory allows a nonmarried person to seek compensation in the context of a breakup. A formal partnership agreement is useful to this end but not necessary for an adjudication of rights and duties. The partnership can be equal or unequal. It can duplicate many of the features of community property. Generally, courts uphold partnership agreements if a business (or real property) is involved, and there is adequate proof of the partnership agreement. Occasionally, a court embraces approximately the same principles, but calls the combination a joint venture rather than a partnership.
- This is a fine distinction that can nevertheless determine property rights. So for example, a person who is domiciled in a community property state that does not recognize informal marriage might, in good faith, albeit mistakenly, believe that his or her informal marriage is valid, but that same person could not in good faith believe that the marriage is lawful since the marriage was not solemnized and licensed in accordance with jurisdictional requirements. By the same token, a person might act in accordance with the jurisdictional requirements, thus believing that the marriage is lawful, but because of a defect in formalities the marriage might still be invalid.
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2014 by LEG, Inc. d/b/a West Academic
- © 2018 LEG, Inc. d/b/a West Academic
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Outline 97 results (showing 5 best matches)
Index 130 results (showing 5 best matches)
Table of Cases 15 results (showing 5 best matches)
- Publication Date: April 18th, 2018
- ISBN: 9781683286844
- Subject: Family Law
- Series: Nutshells
- Type: Overviews
-
Description:
Summarizes the marital property laws dealing with creation, management and termination of community property in nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). Also includes coverage of community option states (Alaska and Tennessee).
Each chapter presents a legal overview of the chapter topic followed by an analysis of the specific law of each of the nine community property states. Topics include a brief history of community property in the U.S., premarital contracts, transmutations, community property, separate property, characterization, management and control, liabilities, forms of intimate partnership, dissolution, and death.
