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Community Property/Marital Property
University of California, Hastings School of Law
Carrillo, Jo J.

Basic Distinctions
 Only 2 different kinds of prop
1.      Community prop: Sec 760
Except as provided by statute, all property acquired by married person during marriage while domiciled in CA is CP
Labor or effort of either spouse is CP
“I earned it, it is ours”
2.      Separate prop: Sec 770
1.      All property owned before marriage is SP
2.      All prop acquired after marriage by gift bequest devise, or descent is SP
3.      Rents, issues, profits from SP is SP
Sec 750
H and W may hold property as (1) joint tenants, (2) tenants in common, (3) CP, or as (4) CP w/ right of survivorship
CP and CP w/ survivorship are for married people only
Unmarried people can only take property as j/t or tenants in common
Sec 751
Interests of H and W are their present interests
Not future interests
Not what H or W will earn in the future, after divorce
Sec 752
Neither H or W has any interest in SP of the other
Sec 910
Community estate is liable for debts incurred by either spouse before or during marriage
Default provision – community is responsible for debts
H and W can opt out of 910
Division of property
At divorce
CP is divided 50/50; but SP tracing may be allowed
SP of each spouse stays SP
At Death
All CP goes to surviving spouse, if decedent dies w/o will; dies intestate
SP of decedent split among heirs and surviving spouse
Or if no heirs, all SP goes to surviving spouse
OR if decedent has will half of CP goes to surviving spouse
Decedent’s half of CP can be devised by decedent to whoever
SP of decedent split among heirs and surviving spouse
Or if no heirs, all SP goes to surviving spouse
Professional Degrees
CA approach to Pro degrees
Pro degrees are not property subject to division upon divorce, but comm might get reimbursement for CP contributions to edu
Sec 2641
a.      Comm contributions to edu or training means payments made with CP
For edu or training
Or repayment of loans incurred for edu or training
b.      Upon dissolution of marriage or legal separation of the parties:
1.      Comm shall be reimbursed for comm contributions to edu or training of a party that substantially enhances the earning capacity of the party
2.      Loan incurred during marriage for edu or training belongs to student spouse to pay off
c.      Reimbursement shall be reduced or modified to extent circumstances render such disposition unjust including:
1.      Comm has substantially benefited from comm contributtions to
2.      Edu or training received by party is offset by edu or training receivd by other party for which comm contributions have been made
d.      Reimbursement to comm and assignment of loan to student spouse is exclusive remedy for comm contributions
Community Contributions to edu/training
Contributions must be directly related to the edu experience itself – Watt
Includes tuition fees, books, supplies and transport at least
No reimbursement for indirect expenses
Ordinary living expenses are incurred whether or not student spouse is in school
                   Only comm contributions, not SP contributions
SP contributions to spouse’s edu are gifts, no reimbursement unless written agreement otherwise
                   Indirect contributions to edu 
In ordering spousal support, ct shall consider the extent the supported spouse contributed to the attainment of an edu, training, career position, or license by the supporting party
Language of 4320(b) is broader than 2641(b)’s language of “comm contributions to edu or training”
Indirect contributions taken into account when ordering spousal support
Consider totality of nonstudent spouse’s contributions and efforts toward “attainment of the edu…” including contributions beyond directly paying for edu or training – Watt
Include contributions towards ordinary living expenses
Balance contribution of each spouse in career threshold marriage
Substantially enhances earning capacity
No per se rules – Law degree is not ticket to prosperity; no per se rules that any degree substantially enhances earning capacity – Graham
Intent of spouse – Look at intent of student spouse for going back to school
          Intent should be to make more money
Getting degree to make more money, or for personal satisfaction?
Actual enhancement – Ct might req actual enhancement of earning capacity
If student spouse doesn’t earn more after edu, then no/less reimbursement
But not clear whether actual enhancement necessary, as long as intent to enhance is met
Possibly adjust reimbursement down if no/little enhancement
Student Loans
Repayment of loans
CP used to repay edu lo

spouse does it
2.      Estoppel to assert statute of frauds
When one party irretrievably changes their position to their detriment, other party can’t invoke statute of frauds; prenup will be enforced – Sheldon
Part performance requires “irretrievable change in position”
Ex. Hall – W gave up her job and paid H money in exchange for life estate in house if they got married. W performed, prenup is enforceable even though prenup is not in writing
Performing ordinary marital duties is not enough
W moving in with H common act of marriage; doesn’t constitute irretrievably changing position
Sec 1614 – amendment or revocation
After marriage, prenup may be amended or revoked only by written agreement signed by the parties
          Only applies to prenups entered into 1986 and after – Sec 1601
Prenups before 1986 don’t need to meet strict writing req
Enforceability of Premarital Agreements/ Defenses to Enforceability
1615(a) – prenup is not enforceable if (1) not voluntary or (2) unconscionable
If spouse can challenge enforceability of prenup by showing prenup was not voluntary OR unconscionable (gross unfairness) at time of signing prenup
Sec 1615(c) – prenup is not volutary unless,
Court must find all of the following in writing, or on record
1.      Party against whom enforcement is sought had IC, or opportunity for IC and waived IC in writing
2.      At least 7 calendar days b/w presenting prenup and signing
3.      If party waives IC, they must be fully informed of obligations etc, be proficient in language, and must execute writing that they received all this info and from who (fully informed)
4.      Prenup and writings in (1) and (3) must not be executed under duress, fraud, or undue influence, and party doesn’t lack capacity to enter into agreement
5.      Any other factors the court deems relevant