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Property II
University of Georgia School of Law
Appel, Peter A.

Property Spring Outline
Appel – 2004
 
1. Marital Interests                                                    
      – 2 types of systems
                  1. Community property
                  2. Common law
                        – husband controlled everything wife had
– anything acquired by wife post-marriage was his; real property remained in her name, but was controlled by husband
– husbands were liable for torts of their wives – this is the only thing that attempts to equalize the relationship
– some state passed Married Woman’s Property Act (MS was 1st) – women gained control of their property, but still had domestic duties            
– although this was a pre-existing duty, so courts deemed it a lack of consideration for promising to leave her property
a.Common law marital property system
                        1. Sawada v Endo
– P injured when D hit him with car; P won suit and is trying to collect money
– after accident, Ds transferred property to their kids – D had owned this property as tenancy by entirety with wife, kids pay nothing and Ds still live on property
– it looks like D conveyed his property to avoid having it sold to satisfy the judgement – this is a fraudulent conveyance
– question – is the interest in one spouse subject to execution by the creditors
                              – 4 groups of states:
1. Property is under exclusive control of the husband – and can convey property without wife’s permission
– more traditional view – if this was the case, creditors would be able to reach his property
2. Estate can be sold to satisfy the separate debts, subject to other spouse’s contingent right of survivorship
– if in this case – can sell during person’s lifetime, but if she survives him, she gets it back (so wouldn’t sell for as much)
3. Either spouse can’t convey the land – creditors of one spouse can’t reach the land at all
                                          4. Creditors can get to the property during the marriage
                                                            – flip of group 2           
                                                – you can attach survivorship
                              – reasons the court gives for joining group #3
                                          – being able to take out loans based on the property
                                          – public policy interest in keeping family together
                                          – can’t create tenancy be entirety to avoid creditors
                                          – create an equal relationship between spouses
                              – so the Ps get nothing – the interest of the family is more important
                              – why was this not a fraudulent conveyance?
– they had tenancy by entirety and since creditors can’t reach the wife’s property, it doesn’t mat

o the whole mortgage
i.Termination of Marriage by Divorce
                              – termination of tenancy by entirety by divorce
                              – how courts divide property depends on the state
– 60s – adopts no-fault divorce, although fault may matter when dividing property
                              – equitable distribution – dividing property equally
– factors in ED – pre-nups, age, health, social status of parties, previous marriages, length of marriage
– courts do this more fairly now – as opposed to common law, where man would get property and woman would get alimony
                                          – not as fair to women – since he could dodge alimony
                              1. In re Marriage of Graham
– dispute about whether MBA was property that needed to be divided in divorce proceedings
– she argues that she put him through school and his future earnings increased after the degree
                                          – trial court says that MBA was divisible property
– CO Sup Ct said that MBA wasn’t marital property – it was uniquely his – since can’t sell, transfer, leave in will