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Outline - I Classification a Introduction i Unlawful...

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I. Classification a. Introduction i. Unlawful marriages – same sex, family, H or W living at time of another marriage. ii. CP states – TWIN CLAN – TX, WA, ID, NV CA, LA, AZ, NM b. Separate property i. Property & pecuniary rights owned by a spouse before marriage & acquired by him or her afterwards by gift, bequest, devise, descent, or inheritance, with the rents, issues & profits, shall not be subject to the debts or contracts of his/her spouse, & he/she may manage, lease, sell, convey, encumber or devise by will such property without joinder 1. If spouse dies intestate with SP: a. If issue they get ½, Spouse ½ b. If no issue, parents get ¼, Spouse ¾ c. Spouse gets all SP if no parents or issue 2. Inception of right – characterize the property when it is acquired c. Community Property – Property acquired after marriage by either H or W is CP. Either spouse, alone, may manage & control CP, with a like power of disposition as the acting spouse has over his or her SP, except: i. One spouse can’t give away (gift) CP or will more than ½ CP without express/implied consent of other ii. Can’t encumber/sell/purchase real property without joinder iii. Can’t sell household goods/furnishings/mobile home without joinder iv. When both spouses manage the property/assets/business they cannot be sold without joinder v. If only one spouse manages, joinder not required 1. Spouse can sell a boat acquired by the other spouse with CP (salary) if they are they manger vi. Property acquired onerously (labor) is community, gratuitously is separate vii.If spouse dies intestate surviving spouse gets all CP, if no living spouse it goes to kids, parents, etc. d. Presumptions i. In a proceeding for dissolution court must classify assets as SP or CP & distribute them justly & fairly 1. The “basic presumption”– all property acquired/possessed (sometimes) during marriage is presumed to be CP. 2. Length of marriage can have weight on whether it is separate or CP (shorter marriage = presumption of SP). 3. The basic presumption can be refuted by “tracing” acquisition to a SP source or by clear & convincing evidence that it is SP a. Burden of tracing is on the one saying it is SP b. If not clear & convincing it is assumed to be CP c. Only slight evidence is needed to show personal item (ring, etc.) is SP e. Source Rule/Tracing
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i. When real property is purchased the courts will determine what funds were used to purchase (either separate or community), whatever funds were used determines if it is separate or CP 1. Assume SP of purchasing spouse until clear & convincing evidence dictates it is now CP or the SP of other spouse (gift) (i.e. property purchased with spouse’s SP & put in both spouses’ names – clear & convincing this is now CP) 2. Real property purchased with SP & then put into other spouse’s name assume SP a. Name on the title is not controlling and doesn’t determine if it is CP or SP ii. Improvements stay with whoever truly has title to the land (doesn’t matter if they were paid for with CP & title form doesn’t matter) II. Tracing & Commingling a.
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