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Community Property/Marital Property
University of California, Hastings School of Law
Romano, Kevin Bobbett

Community Property Outline – Spring ‘09
Sunday, February 15, 2009
8:32 AM

· Parties must conform to the legal requirements to be married in CA
o There are NO common law marriage in CA
o CA recognizes formal marriages
· duly formalized marriages are licensed, witnessed and registered
o Formal requirements of a lawful marriage
· A license
· A witnessed ceremony
· The witnessed ceremony is the most essential element
3. Public recordation
· Putative spouse
o CA like most other comm prop and a few C/L states follow the civil law putative spouse doctrine
· Applies when the parties attempt to contract a lawful marriage and one or both maintain a good faith belief that the marriage is valid
· Putative spouse status lasts only as long as the good faith belief does and once the putative spouse learns the marriage is invalid, she then loses her protected status w respect to subsequently acquired prop
o Putative spouse doctrine is generally understood to address a defect in legal capacity and NOT to correct a failure to follow the formal reqs for contracting a lawful marriage
o Most putative marriages are formally adequate but legally ineffective b/c one or both spouses are still married to another person
· Cal SC treats nonrecordation as a fatal defect
· But some US jdx that have specifically considered the issue have concluded that the witnessed ceremony is a legal essential and a failure to record is NOT a fatal defect
· The issue is not whether Mex requires recordation but whether Mex takes the view that nonrecordation invalidates an otherwise valid marriage
· b/c CA recognizes valid marriages form other jdx
· (Estate of Leslie)
o Putative marriages usually happen when one party doesn’t get divorced before marrying another
o § 2251 – Status of putative spouse; division of quasi-marital property
· If a determination is made that a marriage is void or voidable and the ct finds that either or both parties believed in good faith that the marriage was valid, the ct shall
· Declare the party/parties to have the status of putative spouse
· If the division of prop is in issue, divide in accordance w Division 7 that prop acquired during the union which would have been comm prop or quasi-comm prop if the union had not been void or voidable. This prop is known as quais-marital prop
· If the ct expressly reserves jdx it may take the prop division at a time after the judgment
o § 2254 – Support of putative spouse
· The ct may, during the pendency of a proceeding for nullity of a marriage or upon judgment of nullity of marriage, order a party to pay for the support of the other party in the same manner as if the marriage had not been void or voidable if the party for whose benefit the order is made is found to be a putative spouse
o Void – void from the start
o Voidable – voidable but subj to ratification
· EX. – marriage induced by fraud, before age of minority

· § 2200 – Incestuous marriages
· Marriages between parents and children, ancestors and descendants of every degree, brothers and sisters of the half as well as the whole blood, uncles an nieces or aunts and nephews are all incestuous and void from the beginning whether relationship is legitimate or illegitimate
· § 2201 – Bigamous and polygamous marriages
o A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former H/W, is illegal and void from beginning UNLESS
· Former marriage has been dissolved or adjudged a nullity before date of subsequent marriage
· Former H/W (i) is absent and not known to the person to be living from a period of 5 yrs immediately proceeding the subsequent marriage, or (ii) is generally reputed pr believed by the person to be dead at the time of subsequent marriage
o In either case the subsequent marriage is valid UNTIL its nullity is adjudges pursuant to § 2210(b)
· § 2210 – Grounds for nullity
· A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
a. The party who commences the proceeding or on whose behalf the proceeding is commenced without the capability of consenting to marriage as provided in § 301 or 302, UNLESS after attaining the age of consent, the party for any time free cohabited w the other as H and W
b. The H or W of either party was living and the marriage w the H or W was then in force and that H or W
· (1) was absent and not known to to be living for 5 yrs immediately proceeding the subsequent marriage OR
· (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted
c. Either party was of unsound mind, unless the party of unsound mind after coming to reason, freely cohabited w the other as W and H
d. The consent of either party was obtained by fraud unless party knew of fraud afterwards and w full knowledge freely cohabited as H and W
e. The consent of either party was obtained by force, unless after full knowledge party freely cohabited as H and W
f. Either party was at the time of marriage, physically incapable of entering into the marriage state and that incapacity continues and appears to be incurable
· § 2252 – Liability of quasi-marital prop for debts
· The prop divided pursuant to § 251 is liable for debts of the parties to the same extent as if the prop had been comm prop or quasi comm prop
· Registered Domestic Partnerships
o Before 2000 – unmarried same sex couple treated as any other non married ppl at death or whenever else
· No rights
· Barring an agreement/will any joint prop was subj to partition in civil action like any other unmarried couple
o 2000-2003 – same sex and opposite over 62 could register but only certain rights
· Visitation and health care
· No other rights
· No prop right
· All prop remained separate
· All joint prop was subj to partition in civil action like other unmarried couples
o 2003-2005 – if registered domestic partnership ended in death they were given some of the same rights in probate code
· If died intestate only
· Prop rights under termination remained unchanged, no comm prop same as above, subj to partition etc…unless agreement or estate plan that specifically left prop to the other

o 2005 and beyond –
· 1-1-05 remember this date
· Started to acquire same rights as married ppl do
· § 297.5 states registered domestic partners have same rights, benefits, etc under law as spouses do
· Comm prop law applies fully to RDP
· Upon dissolution or death of an RDP comm prop rules apply
· Not sure if this was retroactively or not (not sure what Leg intended)
· § 4c new laws apply regardless of date
§ So all laws presumed retroactive
§ UNLESS doing so would constrain due process
· Probably WONT be applied retroactively to RDP’s before 2005
· Separation of Property before, during, and after marriage
o From DOB to DOM (birth to marriage day)
· All work by TES is SP
o DOM to DOS (marriage to separation)
· All work by TES is CP
o DOS to DOD (separation to death)
· All work by TES is Sp

eparate or community interest to the other spouse OR they joined together to transform ownership from SP to CP or vice versa
o Title is sometimes immaterial and sometimes presumptively controlling
· § 803 – Married Women’s Special PRESUMPTION (rare to see)
o Whenever real or personal prop or any interest was acquired BEFORE 1/1/75 by a married woman by an instrument in writing, these PRESUMPTIONS apply:
· (as long as done in good faith, for valuable consideration)
· (regardless in any change in marital status after acquisition)
· If acquired by married woman, PRESUMED to be married woman’s SP
· If acquired by married woman AND any other person PRESUMPTION is married woman acquired her part by TENANT IN COMMON UNLESS diff intention expressed in instrument
· If acquired by husband and wife, and instrument describes them as H + W PRESUMPTION is CP UNLESS diff intention expressed in instrument
o IN THESE CASES this presumption SUPERSEDES the § 760 general CP presumption if meets these requirements:
· ’75 date AND how was owned
· Start w/ general § 760 presumption
· Do any other presumptions apply? (like § 803)
· If § 803 or another presumption does apply start there (instead of started with § 760)
· Presumption Concerning Property Held in JOINT FORM
o § 2580- Legislative Findings and Declarations
a. It is public policy of CA to uniformly provide and consistently for std of proof in establishing character of prop acquired by spouses during marriage in joint title form and for allocation of CP and SP interests in prop between spouses
b. b/c case and statutory law has created confusion, spouses cannot have reliable expectations as to characterization of their prop and allocation, attys cannot reliably advise clients
c. So a compelling state interests exists to provide uniform treatment . . .
o § 2581 – Community Property PRESUMPTION for prop held in JOINT FORM
· Presumed CP is held in joint form
· Joint form includes CP, JT, TiC, T by E
· May be rebutted by
a. Clear statement in deed or other document that states was acquired as SP – OR
b. Proof of written agreement that it is SP
· ONLY USED for purposes of division of prop or dissolution
§ NOT FOR death of a spouse
§ For death JT’s still work in normal manner w right of survivorship
· This applies to real AND personal property!
§ Before § 2581
· Oral and implied agreement are allowed as proof
§ After 1/1/84
· Can only rebut JT’s by written agreement
· Other forms – oral and implied still allowed
§ 1/1/87 and After
· All joint forms need to be proved by written agreement (oral or implied not longer allowed)
§ § 851 – Transmutation Statute – effective 1/1/85 any transmutation needs to be in writing (change character of property)