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Family Law
Wake Forest University School of Law
Reynolds, Suzanne

 
I.       Marriage and its Alternatives
 
A.     Law of the intact marriage
1.       Marital property: ownership and control
a.      Ownership in common law system
i.         Before MWPA
1.      Ownership: by title (gift presumption for H only)
2.      Control:
a        Husband had control (followed title), could dispose of wife’s
b        Wife’s control during marriage belonged to the husband. 
c         The husband could dispose of wife’s personal property.
d        Husband cannot convey a fee simple even though he has ownership. 
i          Can convey the interest he has, which is a life estate if they have children; it reverts back to her unless they had children, but if they had children, he has a life estate after her death.
ii.       Post-MWPA
1.      Ownership: by title
a        Gift presumption for H and W
b        No resulting or constructive trust for W unless she contributes money, proves agreement, or establishes unjust enrichment.
2.      Control:
a        Pre 1970s: Followed title except for property held as tenants by the entirety, which H controlled
b        Post 1970s: followed title
iii.      Title theory
1.      Title controls during the marriage
2.      The situation is very different upon divorce but as of right now title controls. 
iv.     Related doctrines
1.      Gift presumptions
a        If husband furnished consideration for property titled solely or jointly in wife’s name, the law recognized a gift presumption for wife (no resulting trust for husband)
b        This only operates in common law states (its not needed in community property states because title doesn’t control)
2.      Resulting trust
a        Implied in fact (not in law)
b        Equitable remedy that is generally available whenever one spouse proves that a person who gives consideration (not just housekeeping) for the property and titles it in the name of another does not intent to make a gift but rather intends to keep some or all of the beneficial interests. 
3.      Constructive trust
a        Need common intention or unjust enrichment—abused a fiduciary relationship
b        Implied in law trust (not implied in fact); W would have to show that H would be unjustly enriched if he was able to use her money and she got nothing to show for it.
b.      Ownership in a community property system
i.         Overview
1.      Both spouses own wealth acquired by the labor of either of them during the marriage.
2.      Premarital wealth is regarded as separate property, and its ownership is not affected by marriage.
ii.       Significance of date of marriage
1.      Any assets acquired after the marriage are marital property. 
2.      Anything belonging to either spouse before marriage is separate property.
iii.      Significance of labor of marriage
1.      Labor of the marriage refers to money earned during the marriage.
2.      Gifts to one spouse are not property of the marriage.
iv.     Control
1.      Pre 70’s: 
a        W held an ownership interest in that wealth but her interest was passive,
b        H possessed full power to manage all of the

spouse to supply the allegedly necessary item
iii.      Significance of separation
1.      The doctrine will apply unless the spouse can prove that the store knew they were separated.
2.      She has a direct action for spousal support because the parties are separated; if they were not separated, there would be no direct action, and the necessaries option would be the only option.
iv.     Theoretical background
1.      Doctrine of necessaries is sometimes said to rest on a theory that the wife acts as the husband’s agent for the purchase of necessary items.
d.      Implications for new property
i.         Preserving income for the non-institutionalized spouse
1.      Nursing Home Care
i          If the institutionalized spouse is the primary source of income, federal law provides that the community spouse is entitled to a portion of that income for his or her living expenses (use a formula). The rest of the institutionalized spouse’s income goes toward his or her care.
Generally, states exempt form the eligibility calculation portions of the institutionalized spouse’s income that must be paid to support dependents pursuant to a court order. This rule clearly applies to court orders that preexist the application for Medicaid.