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Community Property

Community Property. Richard M. Cartier San Joaquin College of Law Class 3 [91-154]. California Community Property. Arises by operation of law Assets are characterized as Community or Separate Property based on the time and manner of acquisition Parties may “opt out” of the system

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Community Property

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  1. Community Property Richard M. Cartier San Joaquin College of Law Class 3 [91-154]

  2. California Community Property • Arises by operation of law • Assets are characterized as • Community or Separate Property based on the time and manner of acquisition • Parties may “opt out” of the system • Premarital agreements • Transmutations • Marital Settlement Agreements

  3. Premarital Agreements • Historical uses • General acceptance—unless terms violate public policy • Agreement promotes divorce • Compare Dawley and Noghrey • Agreement concerns impermissible subject matter--obligations imposed by law • Pendleton & Fireman • Agreement is not voluntarily entered • Bonds

  4. California Premarital Agreement Act • Definition • Formalities; consideration • Subject matter of premarital agreements • Enforcement FOR MORE INFO... Family Code §§ 1601-1617

  5. Spousal Support Waivers • Traditionally, waivers violate public policy • Williams v. Williams (Ariz.) • Pendleton & Fireman • Waivers not per se unenforceable • May become inequitable or unjust • Unconscionabilty • When contract entered • When contract enforced

  6. Voluntariness • Force, fraud, and the unrepresented party • Marriage of Bonds—rejects strict scrutiny when one party unrepresented • The legislature responds— • Family Code § 1612 (c) • Family Code § 1615 (c) /Marriage of Rosendale – see text pp. 122-123 on retroactivity of amendments to California’s Uniform Premarital Agreement Act

  7. Formalities • Traditionally, a writing required, except • Executed oral agreements – Freitas • Estoppel to assert the Statue of Frauds – Estate of Shelton • Formalities under the PMAA • Hall v. Hall – p. 128 • Revisit Borelli v. Brusseau – p.103 • IRMO Benson – page 136

  8. Transmutation During Marriage • Pre-1985 • Oral transmutations valid • Do the subsequent words, acts and conduct of the parties evidence the agreement? • In death cases – Estate of Raphael • In divorce cases – Marriage of Jafeman

  9. Transmutation During Marriage • Post 1/1/1985 • Transmutations require a writing (“an express declaration”) signed by the party whose interest is adversely affected UNLESS • Item of a personal nature • Intended for use of recipient spouse • Not consequential in value taking into account the circumstances of the marriage

  10. An express declaration . . . • Estate of MacDonald – “a writing is not an “express declaration” unless it contains language which expressly states that a change in the characterization or ownership of the property is being made.” /the legislative response– n.7 p. 129 See also: Marriage of Benson -- p. 136 Marriage of Barneson Estate of Bibb Starkman In re Summers – p.148

  11. Transmutation & the fiduciary duty • IRMO Besnon • IRMO Haines • IRMO Lange • IRMO Delaney • IRMO Mathews • IRMO Burkle • IRMO Kieturakis /See text pp. 151-154

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