Final Study Guide For Community Property

1) Basic Principals and Rebuttable Presumptions

a) 760 Property acquired during marriage is community property
b) 770 Property acquired after marriage is separate property
c) CPAA California Premarital Agreement Act 1985 UPAA 1982
i) Bans support waivers for divorcing spouses in premarital
agreements: Californias version of the UPAA (Universal
Premarital Agreement Acts) by eliminating the language
regarding spousal support waivers
d) 4301 (Use of separate property to support spouse)
i) A person shall use their separate property to support their
spouse when there is no community or quasi-community
property
e) 2581 (community property presumption for property held in
joint tenancy)
i) A clear statement in the deed or other documentary evidence
of title by which property was acquired that the property is
separate property and not community property
ii) Proof that the parties made a written agreement that the
property is separate property
f) Property acquired through devise, gift, bequest or descent during
marriage is presumed to be separate property
i) Gift two types
(1)Onerous through hard work and is considered to be
community property as it was acquired through the effort
of the community
(2)Lucrative given out of pure generosity and as such is
considered separate property
g) Transmutation of property is the characteristic of that asset
switching form either separate to community or community to
separate thereby changing the adjudication and division of the
asset 1985
i) 850 (transmutation of property by agreement or transfer);
851 (fraudulent transfers laws apply); 852 (form of
transmutation); 853(effect of will)
(1)must be in writing
(2)must be unequivocally referred to transmute
(3)approved by adverse affected spouse
ii) Tracing
(1)Direct Tracing
(a) Requires the actual tracing of separate property funds
from separate accounts being used for community
assets like updating a couples home. Showing separate
property funds were available is inadequate, rather the

attorney must show the separate funds were used for

the alleged purpose
(2)Recapitulation (Exhaustive tracing)
(a) To show commingled funds are separate property the
attorney must show that at the time of acquisition all of
the community funds were exhausted by the community
expenses
iii) Goodwill
(1)Market Value
(a) How much would a buyer purchase the business for the
day after dissolution? The difference in price between
the amount paid to first purchase the business and the
amount a buyer would pay today is the goodwill
(2)Capitalization
(a) How much is a similarly situated business worth? Then
compare the difference in revenue between the
spouses business and the new business, the difference
in price is presumably the goodwill
iv) Division of a separate property business
(1)Pereira
(a) To compute a fair rate of return on the employed
spouses business investment, that becomes spouses
separate property and the remaining revenue is for the
dependent spouse. Used primarily when revenue to
spousal labor
(2)Van Camp
(a) Compute a fair salary for the employed spouses labor,
times that by the number of years in the marriage and
subtract all community expenses, the remaining amount
is the community property. The amount left over outside
of the spouses salary is the separate property of the
employed spouse. Used primarily when the revenue of
the business was due primarily to investment purposes
and not labor.
h) The role of title
i) Title alone is not indicative of ownership
ii) Forms of title that raise presumptions of gift or agreement to
transmute
(1)Joint tenancy
(a) Equal ownership & right of survivorship
(2)Tenancy in common
(a) Separate property interests
(3)Community property
(a) Property acquired during marriage is community
property

(b)Pre 1975 to create community property title had to be

as husband and wife or explicitly declared as
community property
i) Pension funds, retirement accounts, savings accounts and
banking accounts can all be community property is acquired
during the marriage
i) However, stock options and retainers (retirement bonuses)
may be considered separate property because they are not
predicated on past work that was done during the marriage
but rather for future labor or for retiring
j) Educational licenses and degrees may be considered community
property to the extent that the non-working spouse may be
entitled reimbursement for efforts, sacrifices and monies paid in
helping the working spouse receive their higher education
degree
k) Disability benefits are generally the separate property of the
injured spouse, while they may be community property during
the marriage once the divorce or dissolution happens then it is
considered separate property
l) The goodwill of a business is a community asset and may be
divided
i) There is no one set formula for determining goodwill and at
times is little better than a guess, the number for goodwill will
be determined by an accountant the court deems credible
2) Common law system of community property and the seven other
states (including California) who adopted the Spanish community
property law system
a) Spanish community property system is the distinction between
community property (property acquired during marriage) and
separate property (property gained before, after or during
marriage by gift, devise, bequest or descent)
i) Arizona, California, Idaho, Louisiana, Nevada, New Mexico,
Texas, Washington, Wisconsin (A.C.I.L.N.N.T.W.W.)
b) Before 19th century women owned property through men
3) Contrast between modern common law and community property
systems
a) Common law assumes each spouse wants their own property and
treats them like never married unless stated.
b) Community property assumes joint ownership unless a spouse
demonstrates otherwise
c) Uniform Marital Property Act was approved by the National
Conference of Commissioners in 1983 and has only been
adopted by Wisconsin
d) Child support

i) Child support is intended to support only the child not the

caretaker as well; every state now has guidelines for child
support
ii) Spousal Support (alimony)
(1)Req: a spouse is eligible for spousal support only if she is
unable to meet her reasonable needs from property,
including that distributed to her at divorce, and earnings
from her own gainful employment unless the presence of
young children or her own incapacity makes such
employment unfeasible.
(2)Modern CA: require the courts to make a finding of about
the parties standard of living during their marriage and in
making the award, consider the parties marital standard of
living and the extent to which the earning capacity of each
spouse is sufficient to maintain that standard of living. The
court must also asses the needs of each party based on
standard of living during marriage
Chapter 1: Introduction to community property
4) Wirth v. Wirth
a) Constructive trusts may be found by a court when a party,
because of a confidential relationship, relies upon a promise of
another that is later breached resulting in unjust enrichment.
b) The court held when a wife pays with her own money then she
may be reimbursed only if the husband impliedly or expressly
promised to giver her the money
5) Painter v. Painter (13 conditions listed for consideration during
equitable distribution)
a) Court held equitable distribution not vague and cited judge
Consodine and his 13 areas of consideration pg. 19
b) The next contention of what property is available for distribution
the court held all of the property was including gifts, and
inheritance items.
Chapter 3: Premarital contracts and transmutation of property
acquired during marriage
6) Marriage of Dawley (IDEAL PRENUPTIAL CASE)
a) California states that a prenuptial agreement violates public
policy if it promotes or encourages dissolution or divorce.
b) Unlike other common law states where the mere intention of the
parties entering the prenuptial agreement may be enough to
invalidate it if the parties entered the agreement anticipating a
divorce or break up
7) Marriage of Noghrey
a) The court ruled this contract was against public policy and
therefore unenforceable because it promoted the dissolution of
the marriage or divorce.

i) Because Kambiz was worth so much money and Farima was

worth so little, the court held there was an extreme incentive
for Farima to divorce her husband because she stood to make
a lot of money and gain valuable property.
ii) A prenuptial agreement is against public policy if it promotes
divorce or dissolution
8) Freitas v. Freitas
a) The California statute of frauds is inapplicable to an executed
antenuptial oral contract
b) Manueal T Freitas made a promise to his future wife that if she
married him he would give her a life insurance policy that the
carried worth $1,000 in his name. She agreed to marry him and
he later died. When She went to collect she found out that
Manuel changed the beneficiary from her to his children from
another marriage,
c) The widow sued the children and the court held when Manuel
first placed his the widow on the insurance plan the deal was
consummated and complete and therefore was not barred by the
statute of frauds and the widow was entitled to the life insurance
plan.
9) Estate of Sheldon
a) Marion contends there was an antenuptial agreement where the
parties agreed to not share in the others estate. Florence relied
to her detriment on this promise and the court held it binding.
i) Because the contract had been fully performed and executed
Helen could not claim statute of frauds and that the deal be
drafted.
10) Estate of Sheldon
a) All that is required to show an executed oral agreement of
transmutation of separate property to community property is
proof of acts and conduct of the parties in dealing with their
property
11)
Transmutation of property during marriage
a) Post 1984 transmutation
i) Due to fraud and corruption the California legislature required
the spouse whose property would be adversely affected to
sign any writing or agreement to transmute personal property
to community property
ii) 850 (transmutation of property by agreement or transfer);
851 (fraudulent transfers laws apply); 852 (form of
transmutation); 853(effect of will)
(1)must be in writing
(2)must be unequivocally referred to transmute
(3)approved by adverse affected spouse
12) Marriage of Jafeman

a) Separate property is transmuted into community property if the

record presents substantial evidence of an implied agreement
between the parties to alter the character of Edwards initial
equity in the home.
(a) Mere use will not alter the character of the home nor
will personal testimony of a misunderstanding or secret
belief
13)
Marriage of Benson (highlights the writing requirement of
transmutation) (IDEAL TRANSMUTATION CASE)
a) For transmutation the writing must state on its face that a
change in the character of the property is being made with the
approval of the adversely affected spouse and extrinsic evidence
is barred
i) 852 (of the California Family Code) if the transmutation
statute requiring a writing, approval of adversely affected
spouse and that the language be clear and unequivocal
14) In Re Summers
a) When property is transferred from a third party to spouses as
joint tenants then transmutation law does not apply and both
interests are treated as joints tenants rather than community
property
Chapter 4: Definitional and tracing issues
15) Estate of Clark
a) Property acquired by compromise is separate property if the right
comprised was separate property
i) This is why property acquired by inheritance is considered
separate property
16) Andrews v. Andrews
a) Onerous goods even when granted by will are considered
community property if they are given in exchange for some
future service
b) The only way to keep a will granting someone all the property
rights of their parents as separate property in exchange for
services rendered is by gift devise, bequest or decent and here
none of those are applicable
17) Downer v. Bramet
a) Court may find gifts from employer such as a ranch to be in
onerous title and therefore community property
b) Earnings of property attributable to or acquired as a result of
labor, skill, and effort of a spouse during marriage are
community property
Chapter 5: Evidentiary presumptions in California Community
Property Law
18) Lynam v. Vorwek
a) Money acquired by either husband or wife after marriage is
presumed to be community property

19) Fidelity and Casualty Company v. Mahoney

a) Where the marriage has been for a short period the presumption
that property acquired after marriage is community property is of
less weight than in the long term marriages
b) Also because defendant wife never claimed fraud or
misrepresentation in regards to the one dollar used to pay the
insurance premium the court held if the dollar was community
funds it would have been a gift by the new wife as she would
have had to show that the dollar used was without her
knowledge
20)
Holmes v. Holmes
a) Where property is deeded to a spouse is purchased with
community funds, a rebuttable presumption arises that such
property is the separate property of that spouse
b) However, the fact that the land is purchased from joint savings
accounts of the husband and wife does NOT rebut the
presumption that property deeded to a spouse is the separate
estate of such spouse who holds legal title
Married Womans Special Presumption
(1) 803. Property acquired by married woman before January
1st, 1975 designed to help wife manage the property
under her control
(a) If acquired by married woman the presumption is that
the property is the married womans separate property
(b) If acquired by married woman and another the
assumption is that the part belonging to the married
woman is tenants in common
(c) If acquired by husband and wife and title is in husband
and wife then the property or asset is presumed to be
community property.
21)
Louknitsky v. Louknitsky
a) In a case where the wife claims the realty (house) upon
dissolution as her separate property with title solely in her name,
does evidence that the husband had no idea the title was solely
in wifes name coupled with the fact that all the payments were
made with community funds earned by the husband support a
finding of community property?
b) YES. The lack of knowledge regarding the deed coupled with all
the mortgage payments being made from community funds
earned by the husband support a finding of community property
c) Highlights idea that title does not dictate characteristic of
property
22)
Estate of Baer
a) A finding by the trial court that certain property is either
separate or community property is binding upon an appellate

b)

23)
a)

b)
24)
a)

b)

25)
a)

b)

court if the finding is supported by sufficient evidence, even if

there may be some conflicting evidence on the record
i) Testimony by the husband in regards to property belonging to
his deceased ex-wife is compelling testimony because the
wife is not there to contest any presumptions created
Recognizes the difference between a gift from a husband to his
wife and granting temporary managerial rights so that if
something happened to the husband the wife would have some
money until the probate was worked out
Dunn v. Mullan
Married Womans Special Presumption Act affected this case
because the interest of a wife under a deed naming both
husband and wife as grantees is presumptively her separate
property, while husbands interest is community property (75% 25% split)
Presumptions that property bought during marriage is
community property is weaker than the presumption created
through title (pre 1975 title)
Schindler v. Schindler (PRE 1965 RESULT)
When property acquired by a husband and wife is titled in joint
tenancy, the fact that the property was paid for primarily with
community funds does not establish that is in fact community
property.
i) This was eventually defeated with the anti Lucas legislation
where all property acquired in joint tenancy is community
property
The court when deciding at dissolution whether to treat property
held in joint tenancy as community property will look at whether
both husband and wife signed the lease and if they knew what
they were assenting to, if so then title will prevail and if not then
the court may treat it as a community asset
i) 5110 followed shortly after case and stated single family
residence held in joint tenancy for purposes of dissolution or
divorce is treated as community property
Bowman v. Bowman
In a divorce proceeding an understanding between a husband
and wife to hold as community property, in spite of form of deed,
a dwelling acquired by the parties under a joint tenancy deed
can be shown by the parties conduct and declarations
The parties to this suit had their realty labeled as community
property despite the deed stating it was held in joint tenancy, the
deed presumption was overcome by evidence of the parties
understanding to hold the house as community property and
their declarations to hold the house as such
i) This case is distinctly different from Schindler v. Schindler in
that in Schindler the wife relied on her belief that the house

was held as community property despite the deed stating

joint tenancy but the husband could show he always treated
the house as joint tenancy, in Bowman v. Bowman there was
evidence that both the husband and wife treated their realty
as community property
c) Survivorship marital property
i) Home held in joint tenancy with right of survivorship but
treated as community property
26) Marriage of Lucas (CASE SET NEW MARITAL PROPERTY
PRESUMPTIONS)
a) Case dealt with 5110 and the only way to overcome
presumption was an express declaration stating the contrary
intention
b) The court held the statute controlled the outcome and the
property was labeled as community property even though the
wife purchased the house with separate property funds as well as
maintenance
i) This was the legislatures attempt to not allow the title of a
property to control the characterization of the property and
ultimately the division of assets at dissolution
c) Lucas Rule: IF NO AGREEMENT TO BE PAID THEN ANY SEPARATE
PROPERTY OFFERED TO COMMUNITY PROPERTY IS DEEMED A
GIFT
d) Anti Lucas Law
i) 5110
(1)single family home held in joint tenancy is treated as
community property with right of survivorship
ii) 4800.1 (Both statutes are applied January 1st 1984).
(1)All property bought or acquired during a marriage in joint
tenancy is presumed to be community property even if in
the form of joint tenancy
(2)Requires express statement in deed that property is to be
separate property
(3)Proof of separate property agreement
iii) 4800.2 (2640 is the new statute)
(1)Reimbursed for purchases on community property from
separate property if traceable. (Fallback rule unless written
waiver)
(2)community property is defined in the section as property
that cannot be proven to be separate property
(3)Also applies in separate property contributions to the other
spouses separate property.
iv) Court treat separate property contributions to community
property as interest free loans while community contributions
to separate property as pro rata share.

27) Marriage of Boul (BIG CASE THAT SETS THE STAGE FOR
RETROACTIVE APP.)
a) This case dealt with the implementation of statutes 4800.1&2
because they were passed while the case was on appeal. The
case determined that the statutes should not apply retroactively
because it would place an unjust new burden on couples who
were divorcing and could not have meet the new requirements to
have a residence labeled separate property because a writing
was not required before the law was passed.
i) The court held this affected a vested property right for the
wife and therefore was unconstitutional for the legislature to
enforce the legislation retroactively
b) Therefore the court decided to apply the law only to properties
that were acquired after January 1st, 1984.
28)
Marriage of Heikes
a) Retroactive application of a law that would require
reimbursement where it was previously not required would
deprive spouses and homeowners of a vested right previously
guaranteed
b) 4800.2 negatively affected a wifes vested rights in the couples
home upon dissolution because it would have required the wife
to reimburse the husband for all improvements made to the
community asset from separate funds absent a written
agreement however prior to the laws passing when the
improvements were made the husbands contributions would
have been considered a gift to the community
i) 2640??
29)
Marriage of Warren
a) Where certain amount of community funds were used to improve
wifes separate property and neither the husband nor the wife
intended the money to be a gift, is the husband entitled to
community reimbursement in that same amount rather than in
the amount which is the value of the property at the time of
dissolution trial? YES.
i) The husband is entitled to reimbursement to the community
for community funds spent on separate property however, it is
in the amount of money lent not the amount the separate
property is worth at dissolution
30) Marriage of Jafeman
a) In the absence of a contrary agreement, the use of community
funds to improve the separate property of one spouse does not
alter the separate character of the property
b) Where community funds were used to improve the husbands
separate property, the community is entitled to reimbursement
only if the expenditure was made without the wifes consent or
knowledge

31) See v. See

a) In the absence of a written agreement to the contrary, a husband
who elects to use his separate property instead of community
property to meet community expenses cannot claim
reimbursement
i) The court will assume that if the community funds are empty
and there are still community bills outstanding that the
separate funds used to cover those bills are a gift to the
community
(1)
If you commingle accounts then create burden of
tracking and tracing accounts and spending. Characteristic
of property is determined at time of acquisition
Chapter 6: Classification of property
32)
Estate of Murphy
a) A proven excess of community expenses over community income
during a marriage dos not establish that there has been no
acquisition of property with community funds (Recapitulation
Approach, which the court usually rejects as ignoring the
character of purchases made)
b) When one choose to comingle their accounts with their spouse
they create the burden of being able to trace their funds and
purchases upon dissolution if you cannot then the presumption
that property acquired during marriage will control
i) There are also multiple types of tracing, exhaustive and direct
33) Marriage of Mix
a) A spouse may trace the source of funds withdrawn from a
commingled account where the separate property deposits
exceed separate property withdrawals
b) Tracing funds have two approaches
i) Tracing the exact source of the funds used for the purchase
ii) Or by showing all community funds were exhausted at the
time of the purchase
(1)Three presumption prevalent in this case (A) property
acquired during marriage is community property (B)
earning and accumulations from separate property remain
separate property (C) funds used for living expenses are
first deemed to have been paid for by community funds. In
an commingled funds case first look to see whether the
community expenses exceed community income and if so
then any remaining funds are deemed separate property
34) Estate of Murphy
a) The fact that husband accrues a lot of money both in terms of
community income and separate income does not beat the
presumption that property acquired during marriage is
community property
35)
Marriage of Frick

a) Where funds a re paid from a commingled account the

presumption is that they are community funds
i) The Apportionment Rule where a separate property asset
was benefitted by some community payments the court have
allocated the interest in the property to each spouse
proportional to their individual contributions.
b) To meet the burden of demonstrating the characteristic of a
property as separate the court requires more than just showing
there was enough separate funds to pay any debts or bills, the
court requires that you ascertain the characteristic of the
account like what amount was spent on the community, how
much of the account was community.
36)
Beam v. Bank of America (BUSINESS APPORTIONMENT BEGINS!!)
a) Court here used a Pereira approach to determine the community
and separate property interest in the husbands separate
property business by looking at the a fair rate of return on the
husbands investment as separate income and allow the excess
to the community as arising from the husbands labor
b) Apportionment of business after marriage
i) Pereira Approach (Rate of Return)
(1)A predetermined percentage as a fair return on business
capital, which is separate property. Rate of return
(2)Meant to allocate a fair return on the husbands separate
property investment and allocate the excess to the
community as arising from the husbands
(a) The amount by which the actual income of the separate
estate exceeds the return which the initial capital
investment could have been expected to earn absent
the spouses personal management
ii) Van Camp Approach (Value of spouses community labor)
(1)Limit the community interest to a fixed salary as the
reward for a spouses service. Value of labor.
37)
Gilmore v. Gilmore
a) The court used the Pereira approach and determined the small
rate of return on the husbands dealership was not due to his
labor but rather was due to pure investment, which is considered
separate property.
i) The Pereira approach showed all of the revenue the business
made was due to the rate of return on the husbands
investment and not his labor, skill and effort and therefore all
proceeds were held as separate property
38)
Tassi v. Tassi (IDEAL PEREIRA/VAN CAMP CASE)
a) The law assumed any available community funds will be used to
pay any community debts before any separate funds or assets
are used to pay for community debts or bills

b) The court has discretion in choosing between the Pereira and Van
Camp approaches to allocating a separate property business at
dissolution between separate and community property
i) Pereira approach is to compute an interest on the capital
investment in such business and allocate that amount to
separate property
(a) Pereira approach is preferred when the business growth
is due to labor of a manager spouse
ii) Van Camp is to compute the reasonable value of a spouses
services to his separate property (the business) and allocate
that amount to community property
(a) Van Camp approach should be used when the income
from a separate business was due primarily to
investment
iii) Both types of accounting require a deduction of all community
expenses from the accrued number before a final amount can
be reached.
39) Gudelj v. Gudelj (IDEAL PROPERTY WITH CREDIT CASE)
a) Property acquired on credit during marriage is community
property and if not it depends on the intent of the lender to
primarily rely upon the separate property of the purchaser or
upon the community asset.
b) This is an argument the spouse claiming separate property must
make to show that the credit on which the business asset was
granted was given in recognition of HIS SEPARATE PROPERTY OR
CREDIT and not that of the community to beat the presumption
that property acquired by credit during marriage is community
property
40)
Ford v. Ford
a) The signature of one spouse on a note and purchase money
mortgage encumbering separate property of the spouse cannot
affect the rights of the parties as to the community or separate
character of the proceeds
i) A signature of the wife on a note and mortgage were not
sufficient to support an implied finding that the lender relied
upon the credit of the community, most judicial decisions
indicated that such a signature did not compel a finding in
favor of the community
b) A signature alone will not compel a finding for the community
especially if the opposing spouse can demonstrate that the seller
relied on the separate property asset
41) Marriage of Grinius (IDEAL PROPERTY WITH CREDIT CASE)
a) Loan proceeds acquired during marriage are presumptively
community property; however this presumption may be
overcome by showing that the lender intended to rely solely
upon a spouses separate property and did in fact do so. Without

satisfactory evidence of the lenders intent, the general

presumption prevails.
b) This case raised the standard for showing property and assets
purchased on credit during marriage were separate property
because it required a showing that the lender SOLELY relied on
the opposing spouses credit rather than PRIMARILY.
c) Property acquired during marriage through credit or a loan are
presumptively community property. The general presumption can
be overcome by using tracing principals that establish the
separate property produced the acquisition.
42)
Vieux v. Vieux
a) When one spouse before marriage executes and installment
contract to purchase property and then uses community funds
after marriage to pay for some of the installments, the
community property is entitled to an interest in such property to
the proportion that community funds were used for installments.
b) The appellate court holds that when separate property was used
or updated with community funds it would be community
property to the extent and in the proportion that the purchase
price is contributed by the community.
i) Think of case where separate estate was benefited by
community property and efforts then there is a proportion of
the asset that is in fact community property.
43)
Marriage of Moore
a) In valuing the community interest in a residence purchased by a
spouse prior to marriage, the community interest is to be
computed according to the ratio that the reduction of principal
resulting from community funds bears to the reduction of
principal from separate funds, without credit being given for the
amount paid for interest, taxes, and insurance.
b) Community was granted 10% in the couples home upon
dissolution because the court found that was the amount of the
residence the community had contributed to
44) Marriage of Devlin (TORT DAMAGES AND COMMUNITY PROPERTY
CASE)
a) Personal injury awards and damages are considered community
property while married however, upon dissolution statute
mandates that they be awarded to the spouse who was injured,
however if the interests of justice require a different outcome
then the injured spouse may not get less than 50% of the award
45) Estate of Logan
a) Term life insurance covering a spouse who remains insurable is
community property only for the period beyond the date of
separation for which community funds were used to pay the
premiums. If the insured dies during that period then the
proceeds are fully community property. Otherwise, as in the

46)
a)

47)
a)
b)

48)
a)

49)
a)

50)
a)

51)

instant case, the insured remaining insurable, a term policy does

not constitute a divisible asset since the policy is of no value and
the community has fully received what it bargained for.
Marriage of Brown
A spouse should be granted a contingent interest in a non
vested pension that, if vested, would be deemed community
property.
i) Employer funded pension plans are not mere expectancy
(1)This case overturned the French v. French precedent that
stated non vested pension rights were a mere expectancy
and therefore non divisible
Marriage of Gillmore (IDEAL RETIREMENT BENEFITS CASE CASE)
Retirement benefits earned by a spouse during marriage are
community property, subject to equal division upon the
dissolution of marriage
Retirement benefits belong to the community especially when
they are matured, as there is no reason for the court to delay
their disbursement since the court knows exactly how much will
be paid to each spouse.
Marriage of Poppe
While the time rule is the most frequently used method of
apportioning the retirement benefits between the community
and separate estates of the married couple in a dissolution
proceeding, it is not the only acceptable method and is
appropriate only where the amount of the retirement benefits is
substantially related to the number of years of service.
i) Because the navy retirement system is based on points the
court ordered the case remanded and demanded the trial
court use a system other than the time rule to determine
the community interest in a share more favorable to the
husband because he accrued 1/3 of the retirement before
marriage
Marriage of Lucero
A spouse has the right to elect to share in the increased
retirement benefits generated by the other spouses redeposit of
previously withdrawn retirement contributions upon payment of
a pro rata share of the redeposit of the contributions previously
withdrawn from the other spouses retirement fund.
Marriage of Jones (IDEAL MILITARY BENEFITS CASE)
A married servicemans right to receive disability pay, acquired
before such a serviceman has earned by longevity of service a
vested right to retirement pay, is not a community asset, and
thus is not subject to a division upon the dissolution of marriage
(especially as in this case, the right to lifetime disability pay
came about after losing his leg in combat)
Marriage of Stenquist (IDEAL MILITARY BENEFITS CASE)

a) A spouses military pay is properly divided on the basis of a

determination that the pension rights attributable to the spouses
military service before the marriage, plus the portion of those
rights earned during the marriage attributable to the spouses
disability, constitute their separate property, while the portion of
the pension rights earned during the marriage equivalent to an
ordinary retirement pension, computed on the basis of the
longevity of service and the rank at retirement, constitute a
community asset
52) Marriage of Wright
a) Termination pay (severance pay) received by a spouse after a
marital separation is the separate property of that spouse
i) The payment of severance pay the court likened to disability
pay, it was given in recognition of future diminished earnings
but generally severance pay is given in recognition of past
service and in that case it is community property
53) Marriage of Lehman
a) A non employee spouse who owns a community property
interest in an employee spouses retirement benefits under a
defined benefit retirement plan owns a community property
interest in the retirement benefits as enhanced
i) Essentially is your spouse has a community property interest
in your original retirement benefits then they have an interest
in your enhanced retirement benefits
(1)Any enhancement in the benefit is a modification of an
asset (community) not the creation of a new one.
54) Marriage of Hug
a) There is no clear characterization of stock options, rather the
characterization depends on the facts of the case and whether or
not they were given in recognition of past, present or future
services
55) Marriage of Lukens (IDEAL GOODWILL CASE)
a) The professional goodwill of a medical practice is an asset
properly considered by a court in a marital dissolution
proceeding
i) The professional goodwill of a spouse should be measured by
arriving at a present value based upon past results, and not
accounting for any post-marital efforts
(1)The three factors to be considered for goodwill are (A) the
length of time the professional has been practicing (B) the
professionals comparative success, age, and health (C)
and particularly the past profits of the office which would
reflect any goodwill income
56) Marriage of Foster (IDEAL GOODWILL CASE)

a) TWO METHODS FOR DETERMINING/ CALCULATING GOODWILL:

Market Value and Capitalization (Capitalization of excess
earnings v. Market sales valuation
i) Market Value Approach
(1)Consider the price a buyer would be willing to pay for the
business the day after separation, then determine how
much value the business raised during the marriage (how
much its worth now as compared to when it was bought)
and the difference is the goodwill community asset, the
remaining profits are separate property
ii) Capitalization Approach
(1)This approach requires the court to compare the
community business with another similarly situated
business and the goodwill is the excess in profit from the
income comparison because it shows intangible factors like
image and clientele.
57)
Marriage of Czapar
a) A court may NOT take into account a covenant not to compete
that a spouse might be required to give if the spouse sold the
business when the valuing of the business as a community asset
awarded to that spouse
i) Essentially the court may not consider a non compete clause
when valuing a business at dissolution because it is to
hypothetical
58)
Marriage of Slater
a) A court may not assign a zero value to the goodwill of a business
where the court basis its decision on a partnership agreement
which defined the factors to be considered in determining the
purchase price of such interest
59) Marriage of Sullivan (IDEAL CASE FOR ECONOMIC SACRIFICES
AND DEGREES)
a) A spouse is entitled to reimbursement of monies and sacrifices
made to help a spouse achieve a professional degree that
substantially raised the earning capacity of the community
during the marriage
b) Important distinction between compensation and
reimbursement, the statute only speaks to reimbursement
i) 4800.3 & 4801
60) Marriage of Watt
a) When awarding spousal support a court must consider the
totality of one spouses contribution to the other spouses
attainment of a degree, including contributions for ordinary living
expenses
Chapter 8: Inception and Termination of the Economic
Community
61) Estate of Vargas

a) An innocent participant who has duly solemnized a matrimonial

union that is void because of some legal infirmity acquires the
status of putative spouse
62) Wagner v. County of Imperial
a) A putative spouse may bring a wrongful death action even
without going through solemnization of the marriage if that
putative spouse was dependent on the decedent
i) The fact that there was no solemnization does not affect the
good faith requirement of a putative spouse
63) Estate of Leslie
a) A surviving putative spouse is entitled to succeed to a share of
his or her decedents separate property just as a marital spouse
would be entitled
64) Marriage of Carey
a) The court cannot consider guilt of the parties when dividing their
property equally upon dissolution even if they are putative
spouses or never were officially married
65) Marvin v. Marvin
a) The courts are allowed to consider alimony type support
payments for a spouse like partner who was never married but
relied on the expectation of continued support from the working
spouse