Benchguide 202: Property Characterization and Division

1 CALIFORNIA JUDGES BENCHGUIDES. Benchguide 202. Property Characterization . AND Division . [REVISED 2014]. ABOUT CJER. The California Center for Judicial Education and Research (CJER), as the Education Division of the Administrative Office of the Courts (AOC), is responsible for developing and maintaining a comprehensive and quality educational program for the California judicial branch. Formed in 1973 as a joint enterprise of the Judicial Council and the California Judges Association, CJER supports the Chief Justice, the Judicial Council, and the courts by providing an extensive statewide educational program for judicial officers and court staff at both the trial and appellate levels.

2 It includes orientation programs for new judicial officers, court clerks, and administrative officers; continuing education programs for judicial officers, court administrators, and managers; an annual statewide conference for judicial officers and court administrators; video and audiotapes; and judicial benchbooks, benchguides, and practice aids. CJER GOVERNING COMMITTEE Ms. Pat S. Sweeten (Ret.). Hon. Robert L. Dondero, Chair Court Executive Officer Court of Appeal, San Francisco Superior Court of California, County of Alameda Hon. Theodore M. Weathers, Vice-Chair Hon. Arthur A. Wick Superior Court of California, County of San Diego Superior Court of California, County of Sonoma Hon.

3 Kimberly A. Gaab Superior Court of California, County of Fresno Advisory Members Ms. Tammy L. Grimm Hon. Marla O. Anderson Court Executive Officer Superior Court of California, County of Monterey Superior Court of California, County of Inyo Judicial College Hon. Mary Thornton House Hon. Lisa B. Lench Superior Court of California, County of Los Angeles Superior Court of California, County of Los Angeles Hon. Mark A. Juhas California Judges Association Superior Court of California, County of Los Angeles Hon. Steven Jahr Hon. Rebecca S. Riley Administrative Director Superior Court of California, County of Ventura Administrative Office of the Courts Hon. Ronald B. Robie CJER PROJECT STAFF.

4 Court of Appeal, Sacramento Rhoda Chang Mr. Michael M. Roddy Attorney, Judicial Education and Publications Court Executive Officer Amy Ashcroft Superior Court of California, County of San Diego Editor Benchguide CONSULTANTS Deborah Chase, Senior Attorney Hon. Thomas T. Lewis Center for Families, Children & the Courts Superior Court of California, County of Los Angeles Gabrielle Selden, Attorney Hon. James M. Mize Center for Families, Children & the Courts Superior Court of California, County of Sacramento Editorial comments and inquiries: Rhoda Chang, Attorney 415-865-7745, 2014 by Judicial Council of California/Administrative Office of the Courts Published April 2014; covers case law through 57 C4th, 221 CA4th, and all legislation to 1/1/2014.

5 CALIFORNIA JUDGES BENCHGUIDES. Benchguide 202. Property Characterization . AND Division . I. [ ] SCOPE OF Benchguide . II. MARRIAGE AND DOMESTIC PARTNERSHIPS. A. [ ] Marriage Defined B. [ ] Domestic Partners Receive Same Rights and Responsibilities as Spouses Under California Law C. [ ] No Federal Recognition of Domestic Partnerships Tax Implications III. CHECKLISTS. A. [ ] Checklist: Parties' Agreement B. [ ] Checklist: Assets To Be Characterized C. [ ] Checklist: Characterization , valuation , and Division IV. Characterization OF Property . A. Definitions 1. [ ] Characterization 2. [ ] Community Property 3. [ ] Community Property With Right of Survivorship 4. [ ] Quasi-Community Property 5.

6 [ ] Separate Property B. Presumptions From Title 1. [ ] Presumption From Acquisition During Marriage 2. [ ] Presumption From Form of Title 3. [ ] Presumption From Acquisition During Marriage Supersedes Common Law Form of Title Presumption 4. [ ] Presumption for Property Acquired in Joint Form During Marriage 202 1. California Judges Benchguide 202 2. 5. [ ] Community Property Presumption for Joint Bank Accounts 6. [ ] Bank Account Described as Community Property 7. [ ] Presumptions for Property Acquired by Married Woman Before 1975. C. Time of Acquisition 1. [ ] Property Acquired Before Marriage 2. [ ] Property Acquired During Marriage a. [ ] Community Payments on Separate Property Acquired During Marriage b.

7 [ ] Community Efforts Toward Separate Property : Apportioning Earnings and Profits Between Separate and Community Income c. [ ] Community Estate Personal Injury Damages Awarded to Injured Party Without Offset 3. [ ] Earnings While Living Separate and Apart a. [ ] Living Separate and Apart Defined b. [ ] Spouse's Efforts to Increase Community Property After Separation c. [ ] Personal Injury Damages d. [ ] Causes of Action e. [ ] Acquired by Credit Purchase f. [ ] Copyrights g. Life Insurance i. [ ] In General ii. [ ] Term Life Insurance: Split of Authority iii. [ ] Military Life Insurance 4. [ ] Acquired by Gift or Bequest After Marriage D. Determining the Character of Mixed (Separate and Community) Property 1.

8 [ ] Duty To Apportion 2. [ ] Two Commonly Used Methods of Apportioning Earnings and Profits a. [ ] Achieving Substantial Justice Between the Parties b. [ ] The Family Expense Presumption 3. Commingled Property a. [ ] Tracing b. [ ] Direct Tracing c. [ ] Tracing Through Family Expenses E. Benefits of Employment 202 3 Property Characterization and Division 1. [ ] Professional Education 2. Stock Options a. [ ] Court's Discretion b. [ ] Past Services c. [ ] Future Services d. [ ] Tax Consequences 3. [ ] Accrued Vacation Pay 4. Pension Rights a. [ ] Community Interest b. [ ] Early Retirement c. [ ] Military Retirement Benefits 5. Disability Benefits a. [ ] Employer Disability Benefits b.

9 [ ] Private Disability Benefits 6. [ ] Employer Termination Payments 7. [ ] Workers' Compensation Benefits 8. [ ] Retiree Health Insurance 9. [ ] Social Security F. Transmutation by Premarital Agreements 1. [ ] Right To Make Premarital Agreement 2. [ ] Writing Requirement 3. [ ] Exceptions to Writing Requirement 4. [ ] Consideration and Effectiveness 5. [ ] Subjects of Agreement 6. [ ] Amendment 7. Enforceability a. [ ] In General b. [ ] Voluntariness c. [ ] Unconscionability 8. [ ] Parole Evidence G. Transmutation by Postnuptial Agreement 1. [ ] Right To Transfer Property 2. [ ] Writing Requirement 3. [ ] Writing Not Required for Agreement Prior to 1985. 4. [ ] No Effect on Commingled Property 5.

10 [ ] Notice to Third Parties 6. [ ] Gifts of Personal Nature 7. [ ] Waiver of Right to Annuity or Benefits 8. [ ] General Fiduciary Duty of Spouses 9. [ ] Fiduciary Duty With Regard to Interspousal Transactions 10. [ ] Presumption of Undue Influence 11. [ ] Effect of Will California Judges Benchguide 202 4. 12. [ ] Written Joinder or Consent to Nonprobate Transfer V. Property valuation . A. [ ] Definition of Value B. [ ] valuation as a Question of Fact C. [ ] valuation Experts D. [ ] Bifurcation of Issues E. Time for valuation 1. [ ] Assets and Liabilities Valued at Time of Trial 2. [ ] Alternative valuation Date: valuation at Time of Separation for Good Cause Shown 3. [ ] Notice Requirement for Alternative valuation Date F.