Professor Ikemoto, Spring 2001
California Family Laws and Rules (Code Book):
Divorce: anything over §2000
Rights and obligations during marriage: §§700 – 1800
Division of property: §§2500 – 3000
Child support: §§3900 – 4253
Spousal support: §§4300 – 4360
Charactization of Property
When was the asset acquired?
How was the asset acquired? What is its source? Was it, for example, acquired by labor or by gift?
Is there any legal presumption that may affect the character of the asset? (NOTE: A presumption may control the character of an asset even when the time and source of acquisition are ascertainable, but presumptions are more often important when these vital facts are unascertainable).
Did either or both spouses act in any way that may have changed the asset’s character? Did one make a gift of his interest to the other? Or did both spouses joint together to alter the character of the asset?
Community Property v. Separate Property
§760 Community Property: Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
A married person may not, without the consent of the person’s spouse, convey the couple’s community property.
Generally speaking, community property is earnings acquired during marriage.
Policy for 50/50 community property: The law recognizes different types of contributions (not all in the form of a paycheck). Married couples are one unit. Practically speaking, their earnings get co-mingled anyway.
§770 Separate Property of a married person: Key question – when was the property acquired (before or after marriage)?
Separate property of a married person includes all of the following:
All property owned by the person before marriage.
All property acquired by the person after marriage by gift, bequest, devise, or descent.
bequest – transfer of any personal property by a valid will
devise – transfer of real property by a valid will
transferred by descent – transferred by intestacy
The rents, issues, and profits of the property described in this section.
A married person may, without the consent of the person’s spouse, convey the person’s separate property.
Hypo: Sue owns a 4-unit apartment building. Then, Sue marries Sol. The building is separate property. Is the income on the property separate property or community property – even if it is producing income during the marriage? The income is separate property.
If Sue makes improvements to the building and then raises the rent, what happens? One factor is whether she used $ acquired during the marriage, or $ from her personal account before marriage. If the income is coming in as a result of her labor during marriage, then the income begins to look like community property.
Two Approaches to the Division of Marital Property
Common Law Approach to Marital Property: Most states have a common law system.
During Marriage: In common law states, there is no marital property during an ongoing marriage. This means that something is either “his” or “hers” unless something is purchased jointly.
Your paycheck is your property. So, if you want to give your paycheck to your brother, your husband can’t legally intervene even if you won’t be able to pay the rent.
There is no fiduciary duty.
End of Marriage:
Death: If the husband dies, the surviving spouse gets whatever is “hers.” The decedent’s estate gets whatever was “his.” The law steps in and re-allocates property rights irrespective of title.
The Elective Share: If the decedent leaves nothing to the surviving spouse in his will, statute requires that the surviving spouse receive 1/3 of the estate.
Divorce: This is the only time “marital property” laws come into play. This means that people who don’t get divorced (i.e., death) will never have marital property.
What “marital proper
actly like community property.
During Marriage: You have “community property” and “separate property.”
Separate Property: Each spouse has the exclusive management and control of his or her SP.
Community Property: Each spouse has equal management and control of the CP (whenever acquired). This means that either spouse acting alone may buy, sell, spend, and encumber all the CP. However, this refers only to lifetime control. Each spouse has testamentary control of only his ½ interest in the CP.
Real property: Both spouses must execute instruments involving real property.
Personal belongings: A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or CP household furnishings, or clothing of the spouse or minor children without the written consent of other spouse.
Business: A spouse who is operating a business or an interest in a business that is all or substantially community personal property has the primary management and control of the business or interest.
Gifts of CP: Both spouses must give written consent.
End of Marriage:
Death: The community property gets divided equally. You need to find out what was acquired during the marriage under §760 and then make an equal division. 50% goes to the estate and 50% goes to the surviving spouse.
Divorce: (Similar to division at death) Figure out what is community property and what is separate property. Whatever is community property gets divided 50/50. Whatever is separate property goes to the respective owners.