-
Separate Property
- 1. premarriage
- 2. acquired by gift/inheritance
- 3. acquired by partition or exchange of CP
- 4. tracing (prop purchased w/ SP)
- 5. tort: receipt for personal injury except for med expenses or loss of earning capacity
-
CP
- 1. all but separate property acquired during marriage
- 2. income from SP is CP (but sole mgmt) unless:
- - agree otherwise in writing
- - gift one spouse to other - income on that property is presumed SP
- - if partitioned, can agree in writing that i on that is SP
-
Community Presumption
- - all assets acquired dur marriage
- - all assets acquired w/ credit during marriage
- - assets on hand at time of event (death, divorce, etc.)
- Burden: C/C by party contending otherwise
-
Property Brought to Texas
H/W sell NJ home for 40k
Move to TX
Buy 100k home - 40k down
- = 40K Separate property (if marr term by death)
- = 60K Community Debt
If Divorce = 40K Quasi Community Property
-
Quasi CP
If property would have been CP in JN under TX laws, then = QCP here (upon divorce)
-
Live in TX, but own property in SP state
land is not communtiy property, but states will TX courts will recognize other spouse's interest
-
Community Credit Presumption
1. only can overcome presumption w/ "non recourse note" where borrowing spouse is also not liable
doesn't even matter if other spouse didn't sign/guarantee/encumber assets
-
Inception of Title
CP or SP at time acquired (except retirement assets)
subsequent events don't affect characterization
(but claim for economic contribution? - still exist?)
-
Inception of Title (put in one name)
SP used = title holder's SP (by gift)
CP used = CP, but only slight evidence needed to ovecome presumption of CP
-
Economic contribution?
- Yes. Using community funds to
- reduce secured debt or making improvements on SP)
-
Life Insurance
1st premium determines CP or SP
- If bought in SP state and brought to TX
- = SP upon death
- = QCP upon divorce
Claim for reimbursement? still exist? NO.
and claim for contribution not available b/c not reducing secured debt or making improvements on SP
claim for fraud on spouse if used CP, but not named beneficiary
-
Pension
- divides by % married / not married upon term by divoce
- but spouse has no interest if died
-
Defined Contribution Plan - 401k
assets in account upon marriage, including appreciation = SP
additional contributions, as well as income and dividends on both SP and CP = CP
-
Wage Replacement & Disability
CP or SP based upon when received, not earned
-
Stock Options
Prorated time married v. unmarried
-
Business Interests
Inception of Title, but:
- claim for equitable reimbursement - REPEALED
- - value of time/talent (minus)
- - value of time necessary to preserve (minus)
- - compensation received by H in dividendes & bonus (which was CP)
-
Commingled Assets
"Community Out First"
- - $25K into account
- - up to $50k w/ CP
- - down to $12K
- -up to $50 (CP)
=$12k is SP, rest is CP (lowest balance, spent CP, then SP down to $12k -- went back up to CP, but was CP
-
Division Upon Divorce
"just and right" but can't award SP of one to the other
Cannot gift property to H/W as CP (actually 1/2 SP of each)
Can set aside SP for payment of child support though
-
Just and Right Considerations
as long as not so disproportionate to be manifestly unjust and an abuse of discretion
- age, earning power, need for support, size of estate, tax
- later discovered CP is divisiable
-
Spousal Maintenance
- married 10 yrs, lack property, lack skills/disabled/custody of disabled child
- - lesser of:
- -2500/mo and 20% of monthly income
- limited to time to get job/sklls and can be modified
-
Divorce and then Death (Ben designations)
LI = predeceased
ERISA = x-spouse takes
Property Casualty: go to benenficiary ex-spouse only if awarded property
-
Sole Business / related assets upon divorce
goodwill not divisible
shares are divisible
K for sale is divisible
professional education not divisible
-
Multiple Spouses (CP v. SP)
- H/W
- H also marries Z
- makes 100k
- 50K = Z SP (unless knows of other marriage)
- 50K = H/W CP
but if W dies, then marries Z = all CP
-
Trust Income (SP v. CP)
income for life, then principal to kids
income = SP
income for life, but can w/draw P at 40
income = SP until 40
-
Minerals
Delay Rentals are only CP interest
Rest is SP
-
Corporate Distributions
- CP:
- - Cash dividendes
- - Interest earned on IRA
- SP:
- - Stock Dividence
- - stock split
- - cap gains from sale
-
Mutual Funds
Cash Dividend (dividend and interest received by mutual fund) = CP
Cap Gain Dividend (share of sale of mutual fund holding) = SP
-
-
Premarital Agreement - requirements
- - in writing
- - signed
- - no consideration necessary
- - can make i from SP = SP
- - can include testamentary requirements
- - can alter homestead, spousal support, fam allowance, etc. (but not child support)
-
Premarital - can't...
alter child support
say X will be CP (b/c not married yet)
-
Set aside premarital agreement
1. involuntarily executed; or
- 2. uconscionable when made &
- - no fair disclosure of property/obligation
- - rigt to disclosure not waived
- - no adequate knowledge of property
(burden on party seeking to set aside)
-
Marital Agreements/Conversions (not Pre-m; purposes)
- 1. equalize estate
- 2. bump up in basis
- 3. must be in writing, signed by both parties
- but lose some creditor protection; exposes to divoce; lose abilty to dispose of by will;
both must sign
-
Partition Agreement
valid against BFP if filed in county where property located
valid against preexisting unsecured creditors (unless intent to defraud)
-
Survivorship Agreements (CP): that all/part/specific CP belongs to SS upon death
1. must be in writing and signed by both (whereas between ROS account betweenparent and child only needs signing by deceased party)
2. either spouse may revoke w/ notice to other
3. Court order: not a probate asset, but probate won't then vest title, so stattue authorizes proceeding where orders agreement valid
4. Exec unaware and sells assets: BFP protected and exec not liable
5. 3rd party buys from SS w/o notice of revocation: as long as 6 months after dead, purchaser takes title against decednet's successors
-
Fraud on the Spuouse's Community Share
Spouse can make "reasonable gifts" of CP so long as not so disproportionate as to be in fraud of spouse's communtiy rights:
1. relationship to donee
2. amount in relation to estate
3. special circumstances
4. spouse adequately provided for out of remaining estate
5. was gift of donor's sole mgmt CP
(same test for setting aside LI proceeds where premiums paid w/ CP)
-
Illusory Trust (marital property doctrine)
- H sets up trust w/ D as Trustee w/ CP
- H income for life
- W income for life
- D can't sell, vote, etc. w/o H's consent
- on death of survivor, D gets property
= illusory b/c retained control, subject to challenge
if H had no control over D, not illusory (even though could revoke)
-
Creditor's Rights after Divorce
Divorce has no affect on creditor's rights
if W signed note = liable, even if court makes H pay entire note as part of just and right division of assets/liabilities
if W didn't sign note = not liable, and no personal action against W available. but can seek to have constructive trust imposed on the CP set aside to her
but W
-
Marital Property Management
- Separate Property
- W's sole mgmt CP: salary, income from SP
- joint mgmt CP: if sole mamagement of each spouse is combined
- H's sole mgmt CP: salary, income from SP
- H's SP
-
Apparant Authority to Sell
property titled in one spouse's name (or in one spouse's possesson, if asset doesn't have title) is presumptively subject to that spouse's sole management
BFP protected
-
Liability for Torts
Judgment against W for $25k from a tort
Creditor's reach
- CP: yes
- W's SP: yes
- W's sole mgmt CP: yes
- Joint mgmt CP: yes
- H's sole mgmt CP: yes
- H's SP: NO
-
Tenants in Common
Both own whole thing
Each can sell his/her portion
don't have to be married
not automatically ROS
-
Tenants by the Entirety
Only between married couples
each own entire thing
automatically ROS
|
|