Community Property in a Nutshell
Author:
Carrillo, Jo
Edition:
4th
Copyright Date:
2018
17 chapters
have results for community property
Chapter 10. Death 98 results (showing 5 best matches)
- 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.
- 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.
- Many of the community property states have not, and some still do not, require probate administration of the community property, especially when the decedent’s half of the community property passes by intestacy to the surviving spouse.
- 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 4. Separate Property 177 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.
- 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
- 2. If the action is for injury to property, damages shall be awarded according to the character of the injured property. Damages to separate property shall be awarded to the spouse owning such property, and damages to community property shall be awarded to the spouses as community property.”
- 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.
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Chapter 3. Community Property 191 results (showing 5 best matches)
- Community property is
- Every U.S. community property jurisdiction defines community property by a broad, flexible principle called the sharing principle. Characterization of property can be by proof or by the use of general or special community property presumptions. The spouse who seeks to establish a separate property interest bears the burden of rebuttal.
- The cornerstone of a community property system is the sharing principle. All U.S. community property statutes employ it in an “all property except
- For married persons who choose community property, the general rule, found at Alaska Stat.Ann. § 34.77.030 (2014) is as follows:
- As to a community property agreement: unless the terms of the community property agreement provide otherwise, management and control is title-based under Alaska Stat.Ann. § 34.77.040 (2014). The terms of the community property trust govern management and control issues of property in the trust.
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Chapter 8. Liabilities 182 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.
- The other community property states follow some version of a managerial approach. Under the managerial approach community property is a method of holding assets. Community property assets can be seized by creditors depending on whether and to what degree the spouse who incurred the debt had the legal right to manage and control the property. Each spouse acts an agent for the community with actual, implicit, and apparent power to bind the community property.
- 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.
- Generally, if both spouses signed or agreed to the contract for a community debt, the separate property of both can be used to satisfy the debt. If only one spouse contracted the community debt, the separate property of that spouse is also liable for that same community debt. The spouse who didn’t incur the debt may be liable under duty of support or benefit to the community principles.
- , 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.
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Chapter 12. Federal Problems 71 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.
- 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.
- Wisconsin and UMPA use the quasi-community property concept as a major transitional provision for domiciliaries who were married and owned property on the effective date of the community property law. Wisconsin uses the concept of deferred marital property, which is known as property that would have been marital property if it had been acquired after the determination date.
- 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.
- 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 1. Preliminary Matters 93 results (showing 5 best matches)
- The character of separate property rents, issues, and profits during the continuance of the marriage.
- 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.
- “Characterization” describes the process by which property is classified either as community property or the separate property of a spouse. Quasi-community property and quasi-marital property are additional classifications that can be used, depending on the state.
- 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.
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Chapter 6. Characterization Problems 256 results (showing 5 best matches)
- 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.
- 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.
- 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.
- 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.
- 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 2. Contractual Modification 112 results (showing 5 best matches)
- 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.
- 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.
- A gift of separate property made by one spouse to the community is also called a donation. The rule for separate property donations is
- § 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 9. Divorce 125 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.
- 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.
- 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.
- 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.
- H and W are domiciled in California. They move to Texas and establish a domicile there. H and W leave the California community property system and enter the Texas community property system as of the date of the domicile change.
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Chapter 7. Management and Control 154 results (showing 5 best matches)
- Today, U.S. community property states give spouses equal management and control rights over community personal property. (Real property requires joint action of the spouses for each discrete transaction.) Equal rights means that either spouse can make legal decisions about the use of community property without consulting the other.
- Primary management and control for a community property business.
- 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.
- California adopts a managerial system based on equal management and control. The system is straightforward, yet it turns on four distinctions. One, community personal property is governed by the equal management and control rule. Two, community property businesses are governed by a special primary management and control rule. Three, community real property is governed by a joint management rule. Four, by court order, specific community property assets can be brought under the exclusive control of one spouse for a limited period of time.
- “A spouse may, by written power of attorney, give to the other the complete power to sell, convey or encumber any property held as community property or either spouse, acting alone, may manage and control community property, whether the community property was acquired before, on or after July 1, 1975, with the same power of disposition as the acting spouse has over his or her separate property, except that:
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Chapter 5. Joint Tenancy Meets Community Property 146 results (showing 5 best matches)
- 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
- Community property
- 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
- Nearly every community property jurisdiction has adopted an approach that works to characterize property acquired under
- During marriage, H and W buy a house in California for $100,000. They use $50,000 of community property and $50,000 of W’s provable separate property. They take title as joint tenants. At that time, W and H also sign a written agreement that W will keep a 50% separate property ownership interest in the house in the event of dissolution. When H and W dissolve their marriage, they sell the house for $500,000. The house is presumptively community property by application of the statutory community property presumption. But now W can rebut the presumption by producing the second agreement,
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Preface to the Fourth Edition 4 results
- 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.
- Community Property in a Nutshell,
- 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.
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Chapter 11. Nonmarital Relationships 41 results (showing 5 best matches)
- property of the various unions should be divided. When there are two claimants in the form of a lawful spouse and a putative spouse, Louisiana and California have solomonically divided the property, awarding one-half to the lawful spouse as community property and the other one-half to the putative spouse either as quasi-marital property, some other community property analog, or perhaps even community property.
- “quasi-marital property,”
- With the important exception of domestic violence provisions, the legal concerns of nonmarried cohabitants fall outside of the community property system.
- 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.
- On one side of the spectrum is Washington, which equitably grants nonmarried cohabitants access to the community property system on a case-by-case basis.
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Outline 55 results (showing 5 best matches)
Title Page 1 result
Index 125 results (showing 5 best matches)
Center Title 1 result
- Publication Date: April 18th, 2018
- ISBN: 9781683286844
- Subject: Family Law
- Series: Nutshells
- Type: Overviews
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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.