Community Property in a Nutshell
Author:
Carrillo, Jo
Edition:
4th
Copyright Date:
2018
20 chapters
have results for Community Property Law 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).
- 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.
- The character of separate property rents, issues, and profits during the continuance of the marriage.
- 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 In the other states and in Hawaii the community property system was repealed shortly after the 1948 amendments to the Internal Revenue Code (I.R.C.) eliminated the tax advantages that the adoption of community property had meant to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-...
- 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.
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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 4. Separate Property 212 results (showing 5 best matches)
- 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,
- 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.
- In the case of couples who are intentionally or unintentionally not married, different outcomes result. For nonmarried cohabitants, because they cannot acquire community property, the community property defense is not applicable absent an equitable alteration of the ordinary rules. For putative marriages, it is possible to be deemed by law to have come into ownership of community property or community property analogies (like, for example, California’s concept of quasi-marital property); such a result could also produce an analogy to the community property defense. The different outcomes turn on marriage validity doctrines, which of course differ from state to state. Even so, a trend is emerging in light of declining marriage rates. In a community property defense jurisdiction, the more lawful the marriage, the more the community property defense applies. The unmarried couple avoids the defense to which a putatively married couple is perhaps subject, and to which a lawfully married...
- A spouse owns an unencumbered rental unit as separate property. She uses rents to buy a second rental unit. What is the character of the second rental unit? A jurisdictional split arises. In a majority of community property states (the American rule jurisdictions), the rents are separate property, and anything purchased with those rents also will be separate property by tracing. In a minority of community property states (the civil law jurisdictions), the rents are community property, making any purchases from them also community property in character.
- Louisiana defines separate property in
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Chapter 12. Federal Problems 109 results (showing 5 best matches)
- 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.
- 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.
- Upon the death of a primary wage earning spouse, the different approaches of community and noncommunity property states can leave a gap in coverage for the immigrant surviving spouse. The spousal protection statutes of a separate property state (forced share dower substitutes, for example) will not be part of the law of a community property state.
- There are a number of ways in which the laws of more than one state may be involved in deciding which law to apply to determine the character of property. Married couples may move to, from, or between community property states, own property or become involved in a tort in a state other than the state of domicile.
- 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.
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Chapter 5. Joint Tenancy Meets Community Property 222 results (showing 5 best matches)
- 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
- 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
- States have attempted to close the conceptual gap between the common law concurrent and community property title forms in at least four ways. The first is to enable married persons to use CPWROS. The second is to enable a special community property presumption that characterizes common law joint form titles as community property for purposes of a dissolution proceeding, a probate proceeding, or both. The third is to treat joint form titles (and especially the JTWROS) as community property in character absent evidence of a contrary intent. The fourth is to make it more difficult to effect a valid JTWROS, thus steering married property owners to the CP title form.
- One, the difference between a community joint
- a community property state can express and recognize a strong public policy interest in furthering equity between the spouses. If so, the state can enact rules to treat common law joint titles—the JTWROS and the TIC—as community in character for purposes of the
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Chapter 6. Characterization Problems 349 results (showing 5 best matches)
- Federal law is also inconsistent when it comes to recognizing community property rights in federal governmental benefits and private annuity plans. On one hand, Social Security (retirement) benefits are separate property of the recipient employee despite state community property laws. On the other hand, the REACT amendment to ERISA creates a “super community property” interest for the surviving spouse in death benefits. Under REACT, a QDRO may assign pension rights to a former spouse, even if the participant spouse opts to continue working past the (maturity) date at which he or she is eligible to retire with such rights. The REACT right of a surviving spouse applies in community property states to community property and to non-community property interests.
- The civil law approach protects the separate property owner’s title while at the same time (at least in theory) protecting the community’s contributions to purchase with a reimbursement. The downside of this approach for the community is that the community does not get to share in asset appreciation over time. The upside is that the community is not exposed to depreciation in a down market.
- The doctrine of confusion holds that when it becomes impossible or impracticable to identify separate and community property contributions, any separate property components are transmuted into community property by operation of law. The argument in support of the transmutation theory is gift-based: allowing property to become commingled to the point of confusion establishes a separate property contributor’s donative intent to deliver a gift of his or her separate property percentage of the property to the community. See Chapter 2.
- In some states community property law is altered by an express modification of the Uniform Partnership Act to state that a partnership interest is not community property.
- The civil law approach characterizes separate property rents, issues, and profits as community property during the continuance of the marriage. At dissolution, any separate property rents, issues, and profits, are returned to their separate property owner. At dissolution or death, the community may be permitted to seek reimbursement for business growth that traces back to a community property labor component.
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Chapter 8. Liabilities 231 results (showing 5 best matches)
- 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.
- In the civil law system the separate property of one spouse was not liable for the “delict” (roughly defined as the tort or crime) of the other. Similarly, only the community property managed and controlled by the wrongdoing spouse was subject to liability and then only if the delict was committed while the manager was engaged in an activity that benefitted the community.
- 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.
- What is a separate tort? Here again, when it comes to tort liability the community purpose doctrine applies. A separate tort is one that does not benefit the community. A community tort is one that does benefit the community. Prior law exempted all community property from liability for liquidated separate tort claims by defining “community purpose” broadly. But
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Chapter 2. Contractual Modification 213 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
- 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.
- § 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
- Whether a deed alone can transmute an asset depends on both a close reading of state law and of the facts of the case. Every U.S. community property state relies on community property presumptions that are raised depending on whether and, if so, how the asset is titled. The key issue in determining the character of an asset, therefore, is time of acquisition.
- Federal law prohibits or restricts the transmutation of federal obligations from separate property into community property. In such a case, a transmutation might comply with state law, clearly contain an express declaration, and yet still be invalid for federal law purposes. See Chapter 12.
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Chapter 3. Community Property 235 results (showing 5 best matches)
- Community property is
- One meaningful difference between the forty-one separate title states and the nine community property states has to do with vesting. In the forty-one U.S. common law states, a nonearning spouse’s rights in property acquired during marriage are contingent until confirmed by a court judgment at the end of marriage. In the nine U.S. community property states, community property rights in an asset vest upon acquisition.
- For married persons who choose community property, the general rule, found at Alaska Stat.Ann. § 34.77.030 (2014) is as follows:
- 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.
- Referring back to the types of community property systems discussed above, WUMPA and Subsections (1) and (2) in particular make Wisconsin as close to a universal marital property system as exists in the U.S today, while Subsections (8) and (9) steer it toward the ganancial fold that prevails in the U.S. community property states. Moreover, Wisconsin amplifies the civil law rule on separate property rents, issues, and profits by making the community the owner of those streams of income, rather than merely a user entitled to those streams of income during the continuance of the marriage.
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Chapter 9. Divorce 189 results (showing 5 best matches)
- 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.
- 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.
- Community property (or an analog to it) may come into existence during a void or voidable marriage. This happens by application of the equitable putative spouse doctrine, which holds that if one or both parties believed in good faith that their otherwise void or voidable marriage was valid, they may seek a court order for putative spouse status. For purposes of community property law, a putative spouse has most if not all of the rights of a spouse; and a putative marriage acquires assets until a decree of nullity or dissolution is issued by a court. See Chapter 11.
- 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.
- H and W are domiciled in California. They move to New Hampshire and establish a domicile there. H and W leave the California community property system and enter the New Hampshire common law marital property system as of the date of the domicile change.
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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
- expressly converts into California community property, for purposes of the California Probate Code,
- 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.
- The need for a probate-specific quasi-community property concept arose from the situation in which persons retired, after working in a common law state, then moved to California. In the common law state, the surviving spouse would have had a statutory elective share right against a will that did not provide for her or him. A similar right does not exist in California because of the community property system.
- Thus, for the retired couple who did not engage in the labor force while domiciled in California (they were no longer working, their assets had been acquired in another state, and any capital gains of separate property were themselves separate property under California law), the surviving spouse of a retiree could lose the alternative legal protections against disinheritance that he or she would have enjoyed in a common law state. He or she also would be unable to
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Chapter 7. Management and Control 197 results (showing 5 best matches)
- 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.
- 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
- Spanish law gave the husband the right to make gifts of community property to third persons as part of management and control of community personal property. The legal limit to this power was that the husband could not defraud his wife. Most community property states followed the Spanish lead.
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Chapter 11. Nonmarital Relationships 101 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
- The common law rule was that an invalid marriage is invalid for all purposes. The rule was adopted in community property states, but then made considerably less harsh by application of the equitable putative spouse doctrine.
- Nonmarried cohabitants are generally outside the reach of the Family Code. Their property and support issues (if any) are governed by the general laws discussed in Sections A and B above. However, the state Domestic Violence Prevention Act (DVPA) does apply to nonmarried cohabitants. So does most of CAMPAL, with the exception of the special community property presumption for sums on deposit in an account.
- 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.”
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Outline 104 results (showing 5 best matches)
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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Index 158 results (showing 5 best matches)
Title Page 3 results
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 11 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Robert A. Sullivan Professor of Law Emeritus,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
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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.