Term
FC 125
Definition of Quasi Community Property |
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Definition
| Quasi Community property is all real or personal property, wherever situated, acquired while the parties were domiciled in another state, but would have been CP had they been domiciled in CA at the time. |
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Term
FC 297
Requirements for valid RDP? |
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Definition
| Registered domestic partners have the same rights and responsibilities as married couples. To be a valid RDP must (1) share common residence, (2) not be married or in another RDP with anyone else, (3) not be blood related, (4) be capable of consenting, and be over 18, (5) be of the same sex OR of opposite sex and over the age of 62, and (6) filed a Declaration of Domestic Partnership with the Sec. of State |
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Term
FC 300
Def of Marriage
Requirements for valid marriage |
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Definition
| Marriage is a personal relationship between a man and a woman arising out of a civil contract. Requirements (1) man and woman (2) who are capable to marry (3) consent to getting married (4) get a license (5) say the words in front of witness (6) return authentication to county recorder |
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Term
FC 308
Out of state marriage recognition |
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Definition
| An out of state marriage contract that is valid by the rules of that state will be recognized by CA |
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Term
FC 308.5
Exception to out of state marriage recognition |
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Definition
| Even if valid in the laws of the state, CA will not recognize gay marriage |
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Term
FC 310
Dissolution of marriage |
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Definition
| A marriage is dissolved by (1) dissolution of marriage, (2) death of one spouse, or (3) judgment of nullity of marriage |
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Term
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Definition
| Property acquired between DOM and DOS is presumed to be CP, overcome by preponderance of the evidence by tracing purchase to SP funds. |
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Term
FC 760 & FC 770
Definition of Community Property |
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Definition
| CP is all things acquired between DOM and DOS except those things acquired by gift, devise, bequest, or decent with rents, issues and profits therein |
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Term
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Definition
| A married person can convey their separate property without consent of the other spouse |
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Term
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Definition
| Earnings after the DOS are separate property |
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Term
FC 803
Married woman's presumption |
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Definition
| Property acquired before 1975 in a married woman's name alone is presumed to be her SP. Can over come by POTE |
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Term
FC 852
Valid Transmutation |
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Definition
For a transmutation to be valid, there msut be a valid writing signed by the adversely affected spouse that expressly declares an intent to transmute.
A transmutation in a will is not valid until after death, therefore cannot use a transmutation in a will as the required writing under this rule at divorce (before death) |
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Term
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Definition
| Transmutation is subject to the rules involving fraud. This means you cannot transmute to avoid creditors |
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Term
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Definition
| A creditor can come after CP money to pay for a debt that was acquired before marriage |
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Term
FC 915
2 debts that are SP
How does the community get reimbursed if they paid these debts? |
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Definition
| Even if acquired during marriage, debts for child support or spousal support are SP debts. If the community pays these debts, the community can be reimbursed for the last 3 years of payments ONLY IF there was an SP available that could have been used to pay the debt. |
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Term
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Definition
| The community can seek reimbursement for the last 3 years of debts paid toward a SP debt |
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Term
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Definition
| One spouse can unilaterally sell personal property that is CP as long as it is sold for FMV |
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Term
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Definition
| When a spouse breaches his fiduciary duties, the other spouse is entitled to half the gain from the breach |
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Term
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Definition
| Real property cannot be sold, encumbered, or rented out for longer than a year without WRITTEN CONSENT OF BOTH parties |
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Term
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Definition
| Cannot waive independent counsel when waiving spousal support in a prenuptial. Unconscionability of waiver determined at DOT not DOM. |
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Term
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Definition
| A prenup cannot be unconscionable. This means that in addition to writing and full disclosure, it must be entered into knowingly and voluntarily. |
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Term
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Definition
| 721 Fiduciary duties continue past DOS until the division of assets |
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Term
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Definition
| A marriage is not automatically void for being 'already married' if the other spouse has been missing and is not known to be living for at least 5 years, or if the other spouse is generally believed to be dead. |
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Term
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Definition
Even if the conditions of 2201 are met, the marriage is still voidable (just not automatically void)
Marriage is voidable if a spouse is (1) underage (2) unsound mind (3) marriage procured by fraud or force (4) physical incapacity that continues and appears to be incurable
However, if in any of the above the conditions are cured, and the spouse freely cohabitates with the other spouse, then the marriage is not voidable. |
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Term
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Definition
| If the court deems a person to be a putative spouse, then the property acquired while the spouse was putative is quasi marital property, which is treated like CP. |
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Term
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Definition
| Debts created while a couple are putative spouses is treated like CP debt. |
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Term
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Definition
| In a putative spouse case, the judge can order spousal support for one party to pay the other. |
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Term
FC 2250 -
Equal Division Rule |
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Definition
| Equal Division Rule: The court must identify CP and split it between the parties equally. The division must be as close to "in kind" as possible. |
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Term
FC 2250(a)
When is property valued? |
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Definition
| Property is valued at the date of trial. |
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Term
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Definition
For good cause, the court can value an asset at DOS.
Note: The only time good cause has been shown was for CLOSELY HELD BUSINESS in Green Case. |
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Term
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Definition
Property acquired in joint form is presumed CP. Can only overcome with an express writing to the contrary.
Note: Even if bought with SP money, JT makes it CP if no express writing to the contrary |
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Term
FC 2603
Personal Injury Award |
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Definition
| The first 1/2 of a personal injury award acquired in marriage must go back to the injured spouse. THe second half the court has discretion to decide what to do with it. |
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Term
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Definition
| The court can award all of the debt (or most of it) in a truly negative estate to the party who is most able to pay it |
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Term
FC 2623
Definition of Community Debts |
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Definition
| Debts created between the DOM and DOS are CP debts if they were created for the necessities of life. |
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Term
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Definition
| Epstein Credit: If a spouse makes a payment on CP assets after DOS, that spouse is entitled to reimbursement for 1/2. |
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Term
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Definition
| Post 1984: SP contributions to CP asset, SP gets back dollar for dollar off the top of the asset for (1) acquisitions, and (2) improvements. |
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Term
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Definition
SP does not get reimbursed via 2640 if the SP holder made a written waiver that specifically waived these 2640 rights....
Must be specific |
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Term
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Definition
Gives dollar for dollar off the top of a SP asset when other spouses SP money was used for acquisitions and improvements.
Only applies after 2005
SP (!) to SP (2) transmutation |
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Term
FC 2641
Requirements for Community Education Reimbursement. |
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Definition
| The community can be reimbursed for payments it made towards the education of a spouse. Can only be reimbursed for (1) tuition and books, and (2) only if the education substantially increased the educated spouse's earning capacity. |
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Term
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Definition
| The court can divide the property held in JT or Tenants in Common in the same manner as it divides community property. |
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Term
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Definition
| Title of property is presumed correct. Can be overcome by Clear and Convincing |
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Term
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Definition
| Enabling statute that allows states to divide civil retirement plans in accordance with the way it would divide state retirement plans. |
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