Community Property Outline

Community Property Outline - Spring 2007 Community Property...

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Spring 2007 Community Property Outline Timeline Date of Date of Marriage Separation Trial Time F.C. 770 F.C. 760 F.C. 770 Separate Community Separate Property Property Property Issues in a divorce: 1. Child Custody (not on bar) – In CA – “No Fault” state – so apply Evidence Code of relevancy – if relevant – can admit 2. Child Support (not on bar) 3. Spousal Support (not on bar) 4. Division of Assets 5. Assignment of Debts - Dissolution of marriage – like dissolution of partnership o No emotions involved - Trail – final stage of adjudication of any and all issues brought properly before the court - Can up to 2 to 3 years - In California – no pre-nuptial o Have pre-marital o 400 pages on average o No wedding date o Psychological o Understand English – to make sure opposing side understands agreement o Videotaped interview o Stenographer - Agreements – in contemplation of marriage Attorney’s Fees
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Chapter 1 Development of the California Community Property System Date of Date of Marriage Separation Trial Time F.C. 770 F.C. 760 F.C. 770 Separate Community Separate Property Property Property - pre-marital agreements – contractual obligation / agreements o contractual modification of Family Code 760 i.e.; separate property earnings are to remain separate - *F.C. 1612 – Subject Matter of Pre-marital Agreements - *F.C. 1615 – Unenforceable agreements; unconscionability; voluntariness - F.C. 760 – Community Property Defined o Except as otherwise provided by statute, all property, real or personal wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. o 760 is an evidentiary presumption A rebuttable presumption o Shifting the burden of proof i.e.; defendant in criminal case – stays quiet prosecution has burden of proof Highest - Criminal Burden of proof Lowest – Civil (51%) F.C. 760 – earnings – presumed to be community property - Date of separation – i.e.; Hardin Case - Support – by authority – either statutory or case law - F.C. 760 Presumption o Show act of acquisition – date after Date of Marriage Shifts burden of proof to opponent Must have rebuttal Trace to separate property source
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- Page 18 – Statutes - F.C. 770 – Separate Property Defined o (a) Separate property of a married person includes all of the following: (1) All property owned by the person before marriage (2) All property acquired by the person after marriage by gift, bequest, devise, or descent (3) All rents, issues, and profits of the property described in this section. o (b) A married person may, without the consent of the person’s spouse, convey the person’s separate property. - F.C. 760 – Community Property Defined o Except as otherwise provided by statute, all property, real or personal wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
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