Community Property: Wesley Outline 1

Community Property




Definition of Community Property = “all things acquired from date of marriage (dom) to date of separation (dos), except by gift, bequest, devise or decent, with rents, issues and profits thereon.”


Definition Analyzed:

1.      “All Things Acquired during Marriage” = is community property. When married, lose identity. Have to think as a “community”. Money is joined into community. Debts are “acquired” to community as well. Even if $ put in different bank accounts. Thus, not equitable or fair…it’s just the law. Family Law Code defines marriage.

2.      “All Things Acquired from Date of Separation” = takes 2-3 years to do a divorce. Need ONE date for separation. Is a mathematical system. This determines what community property is. That is, money taken on day before “official DOS” is community property. Day after DOS is not! Big Issue is determining DOS.

3.      “Except by Gift, Bequest, Devise or Decent” = gifts, inheritance, etc. taken out of equation and remains your separate property.

4.      “With Rents, Issues, and Profits thereon” = this means that if above earns money, this is yours, but if community property earns money, must divide 50/50.



  1. Court generally only has jurisdiction to divide CP 50/50 and award back SP to SP holder
  2. No fault system = either spouse can bring dissolution proceeding and don’t need a reason.




Requirements for a valid marriage:

1.      Consent

2.      License

3.      Solemnization


Must also have:

1.      Legal Capacity: Prospective H&W must have capacity (can’t already be married)

2.      Marriage can’t be void (incest/pre-existing marriage)


§308 = CA must recognize a marriage from another jurisdiction.

Exception (§308.5) = CA doesn’t have to recognize same sex marriages even if valid in another jurisdiction.




1.      Domestic Partnership = FLC §297

a.       Domestic Partnership Act (original)

                                                  i.      Limited rights. Nothing of substance took place under those

b.      Domestic Partnership Act (amended)

                                                  i.      Signed into law last October. Given until Jan. 2005 to take effect.

                                                ii.      DP under old Act will be grandfathered into new Act

                                              iii.      Coverage:

1.       Same Sex couples

2.       Odd sex relationships

3.       Persons over the age of 62 – they don’t want to get married for social security reasons.

c.       Benefits = DPs will have the same benefits as those with a licensed marriage under §300 – See §299.5

d.      If want to dissolve DP, need to do it through the Family Law Court.


2.      Quasi-Marital Property

a.       Defined = property acquired when one spouse has a good faith belief they are married and through no fault of their own, they are not married.

b.      Putative Spouse = is a spouse meeting above definition. The court can invoke this statute and invoke CP. Putative means “innocent.”

c.       §2251 “Status of Putative Spouse; Division of Quasi-Marital Property           

                                                  i.      This section falls into the “VOIDABLE MARRIAGES” section under NULLITY.

                                                ii.      Defined = (a) if a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall: (1) declare the party or parties to have the status of a putative spouse. (2) if the division of property is in issue, divide, in accordance with Division 7, that property acquired during the union which would have been community property or quasi-community property if the union had not been void or voidable. This property is known as quasi-marital property.

                                              iii.      Rationale = this section was created to deal with situations where have a voidable marriage but don’t want to shaft the innocent spouse and take advantage of them. Eg. married to a non-divorced person and relied on pension benefits of other. If marriage is void, that innocent spouse gets screwed, so this section allows person to get at CP.

                                              iv.      Requiresgood faith” belief that the marriage is valid.

                                                v.      If a putative spouse and invoked §2251, then act is if had a valid marriage for division of assets purposes.

                                              vi.      Problem = a “good faith belief” that marriage was valid seems identical to a COMMON LAW MARRIAGE.

d.      §2254 = not only can assets and liabilities be divided equally, but court has jurisdiction and authority to order spousal support. That is, once invoked, there is no difference between quasi-marital and marital property.


Quasi-Marital Property Cases:


1.      Estate of Vargas (437) – Classical Quasi-Marital Property Case

a.       Husband was leading a double life with “two marriages.” W2 didn’t know about W1 and thought she was married to H only. W2 deemed a putative spouse.

b.      Holding = invoke §2251 – quasi-marital property statute. Divided estate equally between two spouses.


2.      In Re Marriage of Monti – Next Step in Quasi-Marital Property Development

a.       W and H married in Ohio. Got in a fight. H filed a dissolution against W. After she was served, he went back and said he was kidding and wanted to get back. They reconciled and lived happily ever after. Moved to CA and had kids. Later had another fight and marriage breaks up. They both file for dissolution of marriage. H’s attorney comes in with first papers and shows they have been divorced for 10 years.

b.      Issue = H never had lawyer stop proceedings continued without his knowing. What result?

c.       Holding = Court invoked §2251, W had a good faith belief she was married and through no fault of her own, it turns out she was not married.

d.      Point = not same facts as Vargas, but court took same language and extended section of §2251 to find good faith and “no fault” of her own.  


3.      Wagner v. County of Imperial (439)

a.       H and W never “solemnized” marriage, but exchanged “personal marriage vows” and held themselves out as a married couple. Practically, not much different than a “common law marriage.”

b.      Holding = “Solemnization” is evidence of good faith but NOT necessary. Just have to have “good faith.”

c.       Point = Right back to COMMON LAW MARRIAGE (in practical terms).

d.      CA Ambiguity

1.      Southern California = in courts here look for an OBJECTIVE determination of good faith (such as a solemnization). Whereas in Wagner, didn’t require this. Thus, CA Supreme Court is going to determine how assess “good faith” at some point.


3.      Marvin ActionsContracts that allow you to get into Family Law Court

4.      Complete the Marvin action before you go into the dissolution.  Really, it is a two step process, do the Marvin action, resolve it, then go back regroup and do calculations based on what happens between DOM and DOS so that you can resolve all assets acquired. 

5.      I.e. this applies to people who live together, then get married, then separate.



  1. Marriage of Cary (451)
    1. W and H never married but held themselves out as being married.
    2. Family Law Act went to a No Fault System.
    3. T. Ct. held that don’t allow W and H into Family Law Court because they know they are not married and are “committing sin.”
    4. Holding = reversed. FLA allows these types of couples into court because not trying to punish, is a No Fault System. Thus, will allow a division of property. Also, older conception was sexually discriminating because most W were homemakers. Until 1975, H controlled all assets of household.
    5. Point = Can get into Family Law Court without being Married


  1. Marvin v. Marvin
    1. W (P) would give up career to be a homemaker.
    2. Holding = Court said can’t get into family law court unless you are validly married. But then can find an express contract unless based on meretricious sexual relations. In the absence of an express contract, can find an implied contract based upon tacit understanding between parties over the years.
    3. Point = created a liberal interpretation of contracts that allows court to find an implied contract or tacit understanding between parties, which can find in almost all the case. Weird that not in civil court since based on Ks! Family Law Court, not well suited to handle these problems, but have to.
    4. Remedies = can bring contact principles into determining remedies. Shouldn’t do this in Family Law Court but do. This is another problem stemming from Marvin actions.


  1. Trend in CA:
    1. Cohabitate for a few years before marriage.
    2. Acquire assets together before marriage.
    3. Get married and then get separated.
    4. Therefore, might do a MARVIN ACTION first to determine what was acquired before marriage. Then will do a DISSOLUTION PROCEDING analysis to divide CP. Up to court to find a contract (implied or express).





1.      Defined = date when marriage is irretrievably broken

2.      Causes a lot of problems because not as clear as DOM.

3.      Subjective determination between parties as to when breakdown will occur.

4.      Very contested because parties will have different reasons for establishing date. E.g. if bigger earner, than want date earlier because will have to give up less money.

5.      Marriages of 10 years or longer require indefinite spousal support. If less than 10 years, spousal support is one-half the marriage.

6.      Tough determination because court is not involved. Also, Date of Judgment (DOJ) is usually 2-3 years after DOS. Thus, CA uses DOS.

7.     Keep in mind that if the parties separate and get back together and reconcile and then split up, the DOS is the latter date and there is only 1 DOS!!!  This means that by reconciling you potentially lose a LOT of money.

a.     Clients will say that they were separated between this date and that date so it is their money, but this is not true if they have reconciled since their previous separation.


**DOS Determined by an OBJECTIVE STANDARD**


In re Marriage of Baragry – Objective Standard

1.      H was enjoying two relationships. H would still go home to W to have dinner and laundry done. H and W still held themselves out as a married couple. H ceased having sex with W. This went on for four years. 1971-1975.

2.      Issue = What is DOS?

3.      Holding = DOS is later date of 1975. If there is an “ongoing relationship” then no date of separation. Objective standard. See Below.

4.      Note = 1975 is not the date W filed a dissolution of marriage.

5.      Point = DOS is the last day that “objectively” together. Also, any reconciliation will move the DOS to a later date. This can even be in the form of an anniversary card and flowers.


In re Marriage of Manfer – Objective and Subjective Standard

1.     H and W had an argument and separated, living in separate residences.  They decided that for the benefit of their daughters that they would hide their circumstances from family and friends until after the holidays.

2.     Addresses problem of when parties conceal relationship.

3.     Manfer sets up a 2 prong test: 

a.     Look at the subjective intent of the parties.

b.    Objective factors, do they bespeak of their subject intent, do their actions demonstrate that subjective intent was being carried out.

4.     Professor: this just creates more confusion in this area.


Prof.’s case – Objective Standard

1.      W was a navy nurse. 2 weeks before going to ship out she found out H was having an affair. What W did to protect herself was to take H with her and protected secret. She did this so wouldn’t get shafted in court. But, the whole time abroad, she intended to divorce H. When came back, she served H.

2.      Issue = DOS?

3.      Holding = Don’t care what people were thinking – don’t use subjective intent. Therefore, didn’t matter that W intended to divorce H. Look to the conduct of the parties, not to mental state – OBJECTIVE STANDARD. How would a 3rd party determine relationship?


Problem = will have a case (esp. in CA) where both spouses need to contribute to mortgage payments during the divorce proceedings. Therefore, both will live in the house. How find DOS in this situation? Can still find a DOS but have a higher standard to demonstrate to court DOS.

Solution = Will have to demonstrate all kinds of things, such as severed bank accounts, separate bedrooms, split bills, total economic severance between the two.





SP = Court has NO SMJ over separate property. Can only confirm SP back to owner.

CP = can divide 50/50.


Robinson v. Robinson

W conceded that house was H’s separate property. Despite stipulation that H owned property, t. ct. gave W a life estate.

Holding = reversed trial court’s decision. The court has no subject matter jurisdiction to dispose of the SP of one of the parties, nor to carve out a life estate.


In re Marriage of Hebbring - NOT GOOD LAW

H tossed wife’s jewelry into ocean. This was stipulated

Holding = court reimbursed W value of jewelry with a portion of H’s CP. Law says can’t do this. But court uses “Equitable principles” to base decision. Prof. = there is NO EQUITY in Family Law Court.

Point = Not Good Law! Court went well beyond subject matter jurisdiction and injected fault into system. Can only divide CP 50/50. That’s it. Can’t carve into this amount.


Note:  Every time the court tries to do equity, they are bringing fault back into the community property system.


Equal Division Requirement (§2550)


1.      The general rule is that we must divide community assets equally, unless a written agreement or in court oral stipulation to the contrary.

2.      This does not mean that everything must literally be divided in half. Rather, both parties must get equal shares of the assets in the end.  They both have to end up with the same amount.

3.      If the two sides don't end up equal, the party with more has to make a payment to the other side to make it equal.

4.      There are times when it is difficult to divide the assets equally.

5.      Hypo: H and W have 7 children.  The only asset they had was a house in San Diego, worth about $500,000.  The house was almost paid off.  Their mortgage payment was about $400/month.  H was unemployed.  If we divide this asset in half, each side would get about $250,000, but what would happen to mom and the seven kids?  How could they possibly live in SD with $250,000?

6.      FC § 2601 - passed to deal with cases where equal division would be difficult.


Exception to the Equal Division Requirement (“In-Kind Division”) [§2600 + §2601]


§2601 = Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.


In re Marriage of Brigden


Issue = should make an equal division of stock (per §2550) or not?

1.      Court has ability per §2601 to act with discretion in dividing assets.

2.      Court very HESISTANT to invoke §2601.

3.      Court’s first goal is to “equalize out assets”. H wants to make “equalization payments” to W instead of dividing stock. However, dividing stock equally and selling it is preferred option because cleaner and don’t have to worry about other factors.


Tammer Case

If going to do an “equalization payment” have to give extra money to account for future value (inflation) because $ will be worth less down the road.

Holding = Divide equally: economic circumstances do not warrant the award of the entire block to one spouse.

Point = will usually only invoke §2601 if have to such in a case where have a business like a law practice.




§2552: Valuation date for assets and liabilities


Rule = will value assets as close to the DOT as possible with exception of closely held businesses.


Valuation Issue = DOM-DOS--------------------------------(x)-->DOT; at which date do we value the asset?



Get married in 1980. Bought house in 1981 for $100k. In 1982, H leaves until 2004. W takes care of house and makes all payments during time H is gone. W doesn’t file divorce because figures H is gone. 2004 house is worth $800k. H returns and asks for a divorce and ½ of value of house.

Issue = when value the house? DOS (1982) or DOT (2004)?

Holding = per §2552, “the court shall value the assets and liabilities as near as practicable to the time of trial.” Therefore, with one (1) exception, will use the DOT! So, H gets ½ value of house.

Point = this has effects on how appraise things. Will be value house or stock right up until 5 min. before trial! This can be a problem when have 30 different assets!


Strategy: This can lead to a lot of game playing.  For example, if the real estate market is plummeting, you may want to hold onto the property for as long as possible by using procedural means to stall.  The opposite is also true, if the real estate is appreciating rapidly, you would want to get rid of it as soon as possible in order to reduce the amount you pay to your spouse (assuming you are keeping the house in the divorce…)


CLOSELY HELD BUSINESS = Exception to Rule [§2552(b)]

In Re Marriage of Green = closely held business is defined as a business that will be controlled by only one party post separation/divorce. Business will be valued at the “alternative valuation date”: DOS. All other assets will be valued at the DOT.



  1. Official Reason
    1. Since business is going to be operated by one person post separation, it is their efforts that go into business and value is enhanced by their efforts alone which is like SP. Courts lack SMJ to divide SP.
  2. Real Reason
    1. If knew that had to give spouse ½ of value of business, will actually have incentive to lower value of business and cause it to tank. Therefore, public policy doesn’t want us to destroy our businesses.




Basic Definition = Quasi Community Property is property that would be CP if located in CA but it is not.


§125 - Quasi-community property

"Quasi-community property" means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:

(a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

(b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.


§125 Has Two (2) Elements (to give CA jurisdiction to divide assets pursuant to CA CP Laws):

  1. Both Parties domiciled in CA (where intend to reside permanently – can only have one domicile but can have multiple residences).
  2. Dissolution Action has been filed in CA

a.      By taking the second step, the parties consent to application of CA law


Jurisdiction of Quasi Community Property

Once determine that asset is Quasi Community Property will divide it 50/50. This is the only jurisdiction that court has. Will drop the term “quasi” and treat it as traditional community property.



1.       H and W living in Mississippi. Lived their whole life. H earns pension. Under Miss. law would be H’s SP. Never been in CA. After retirement and pension matures, W and H move to CA. W files for divorce after 1 year in CA.

2.       Issue = can divide pension?

3.       Holding = use §125 to deal with this situation. Treats pension as quasi CP and treats as if it had been earned here.


Point = Quasi CP statute allows CA to go into another jurisdiction to reach assets. That is, gives CA right to divide assets even though not earned here and not domiciled here when earned. Also, can go anywhere in the world to divide property that was acquired during marriage.


Problem = when dealing with assets in other countries. Most of the other countries don’t care what CA says and will tell you to take a hike.


Point:  All you must show is that if it was in CA, it would be community property.  Quasi community property is the same as community property. All the statutes that apply to community property, apply to quasi-community property.









Three Presumptions in Family Law Code:

1.      §803

2.      §760

3.      §2581


§803 “Married Woman’s Presumption”

1.      Effective for property acquired BEFORE 1975.

2.      Defined = A property that is held (1) in a married woman’s name alone or in (2) her name and a 3rd party, regardless of where it came from, presumption is that it’s her separate property.

3.      Rationale = In past, H had control over assets. If the man was the one who owned and controlled the property, then if placed property in W’s name alone or in W name and a 3rd party’s, it must be that he intended to make it that way – that he gifted it to her.

4.      Rebuttable Presumption = burden on H is to bring forth evidence countering the presumption. Eg. that property is in W name BUT did it for reasons XYZ. Burden depends on what asset is at stake. If property will have a higher burden (clear and convincing). 


§760 Community Property Presumption

1.      Defined = All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is CP.

2.      Rebuttable Presumption


§2581 CP Presumption for Property Held in Joint Form

Property acquired by the parties during marriage in joint form, including property held in TIC, JT, or TBE, or as CP, is presumed to be CP.  Presumption may be rebutted by:

  1. Clear statement in deed or other documentary evidence of title by which property is acquired that says property is SP not CP
  2. Proof that the parties have made written agreement that property is SP


Point = Essence is that property held in joint form is presumed CP unless SOF exception met.


1.      Below three (3) are different ways to hold property. §2581 only cares that property in “joint form” and not which type of joint holding. Only way to avoid it is in two exceptions below.

a.       Joint Tenancy = legal fiction that H owns 100% and W owns 100% so if one dies, then other get survivorship rights or 100% ownership of house – to avoid probate.

b.      Tenants in Common = each party owns an undivided half or property. Difference is that TIC will have to go through probate. Also, you can “will” it away or leave it to other people.

c.       Community Property = there is a tax advantage to this – can avoid capital gains tax.

2.      Two Ways to Overcome CP presumption (SOF)

a.       (a) clear statement in deed of documentary evidence of title that property is SP

b.      (b) written agreement that property is SP


Examples of difference between §760 and §2581 presumptions 


§760 Example = say have 100k in SP. Get married and take 100k and by a painting. Can’t hold this in “joint form”. Therefore, since not joint form only have the burden under §760 to overcome the presumption. All you have to do is trace back that painting was acquired per $ that had SP. That is, can overcome presumption of §760 (CP presumption) by showing that was your SP that bought the painting. Thus, at DOS, will get all $ gained in value of painting.


§2581 Example = say you buy a 100k house. Escrow will put ownership in joint tenancy (thus per §2581 meets the “joint form” qualification). Difference between this and Monet painting is that can’t overcome the presumption because held in JT by both parties. To overcome this presumption, will have to overcome qualifications of §2581 – need a writing saying despite JT, is H’s SP. That is, house will be considered to have been bought in CP unless have writing, even though it is the same 100k that bought the Monet painting.


Point = Use §760 presumptions for all assets EXCEPT those held in certificates of title in JOINT FORM, in which case use §2581 that has a SOF provision which requires a clear writing to overcome presumption. VERY HARD TO DO. 


Downer v. Bramet

H works for employer from’43 to ’76. Married from ’53 to ’71. No retirement program through employer. Employer gives 3 employees including H a piece of property worth 1.3M dollars. Employer says that don’t have an obligation to give employees this property, thus it is a GIFT per employer.

1.      Issue = Does FLC have to look beyond title of gift and see reasons for “gift”?

2.      Holding = Yes. FLC looks beyond the title and finds reasons for gift – that this was given for efforts of the “community” because during marriage H and W seen as one.

3.      Point = what is important is not the name or label of title of gift but whether “community” earned or did not earn it. “Community” will earn something if done by H or W during marriage before DOS. Consequently, court will divide it 50/50.


Point = Use §760 presumptions for all assets EXCEPT those held in certificates of title in JOINT FORM, in which case use §2581 that has a SOF provision that requires a clear writing to overcome presumption. VERY HARD TO DO. 


Estate of Clark – No Equity in Family Law Court

Major Clark gave land to his 3 kids.  Oldest son dies and leaves property to 3rd party, but Clark thinks it should be his.  3 weeks after son dies, Clark remarries.  Parties settle to 50/50 division of property.  Clark’s new wife thinks she’s entitled to Clark’s half when he dies

Holding = Clark got inchoate right to sue when son died (two weeks before H married W); thus, since right to sue occurred before Clark’s marriage, his wife loses.

Note = if H had married W one (1) day before son died, would have been a CP

Point = demonstrates how Community Property works – that there is NO EQUITY – rather just a mathematical determination.



*Each asset has to be analyzed according to following rules


1.      Transmutation

a.       Clear that asset is either CP or SP but issue is whether there was a Transmutation? This means that the asset (e.g. house) is clearly H’s SP, for example, but there is an issue of whether he transmuted it into CP during marriage.

b.      Definition = a total and complete re-characterization of the property

c.       FLC §852

d.      SP =>CP; or CP =>SP (not SP => SP)


2.      SP contribution into CP [SP =>CP]

a.       Difference from above is that never changed characteristics

b.      FLC §2640


3.      CP contribution into SP [CP => SP]




*First Step: Do §852 Analysis

Second Step: Do §721 Analysis (Did overcome presumption of undue influence?)


Two Sets of Laws (Changed in 1985):


Prior to 1/1/1985:

1.      Law wanted parties to own property together. Frowned on owning SP.

2.      To show transmutation, all had to do was have substantial evidence of transmutation.

3.      Example = H owned house before marriage (been in his family for 3 generations). H invites friend over to house and declares “welcome to our house – we shall reside together forever.” This was the “substantial evidence” of transmutation.

4.      Point = public policy supported transmutation.

5.      However, paternalistic attitude changed over time to become egalitarian.

6.      Culminated in 1985


IMPORTANT = Laws are NOT RETROACTICE. Therefore, property transmuted before 1985 will be subject to old rule.


Post 1/1/1985: §852 controls



1.      There must be a writing

2.      Express intent to transmute


Exception: §852(c) = “This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.”


1.      When spouse buys spouse gift, you are transmuting. That is, taking CP and turning it into SP. So, §852(c) is the exception because would, in practical terms, be stupid to have to have a writing in gift situations.

2.      Example = H buys W a ring, he doesn’t have to put an express statement to transmute

3.      Court won’t buy it if H says the ring was an investment – that is, bought diamond ring as an investment and not as a gift.

4.      What about “tangible articles of a personal nature…”? Example: a car with a personalized license plate used exclusively by a person which was a birthday present. “Not substantial in nature” because car was cheap.

5.      No cases that have discussed “tangible articles of a personal nature”.


Estate of MacDonald

H and W married and both had separate children. W has terminal cancer. Decide to give property to children from prior marriage. They divided it up equally. One asset didn’t address: H had earned a pension – a defined benefit plan. No doubt that portion of plan was community in nature. He rolled by into an I.R.A. You have to list a beneficiary of the I.R.A. In CA, spouse automatically becomes beneficiary of IRA. H and W go into bank and declare beneficiary to be the trust which trust leaves to his children. W signs waiver.

Issue = is this waiver of beneficiary a sufficient (1) writing with (2) express intent to transmute?

Holding = No. There was a writing and everyone knew it was W’s intent to transmute the property. The court said no, however, because the intent to transmute was NOT EXPRESS – that is, must be explicit in writing.

Rationale = reasons why FLC exists is to prevent litigation. §852 was intended to prevent litigation by making a very clear expression of what transmutation would require. Parol Evidence is NOT available.


Language required under §852 = very specific. See “Quit Claim Deed” – has a paragraph with language such as “I hereby transfer, give away, etc.” Thus, you don’t have to say transmute but must be VERY CLEAR from expression that is what parties intended. This is because court will ONLY look at this document and not surrounding circumstances.


Problem of Accidental Transmutation = Accidental transmutations caused by 3rd parties. Ex. have a SP house. Recently refinanced house. Problem occurs when lending institution adds spouses name to house. There is a “writing here” because all magic words will be stated (they want it to be CP b/c want second person to be responsible for loan).


FLC §721 = H and W are fiduciaries to each other. We can’t take unfair advantage of each other. Proceed as business partners, which requires good faith and fair dealing.


Hanes case & Delaney case (created presumption as solution to accidental transmutations)

1.      Used §721 (“neither shall take any unfair advantage of the other) to create a presumption of undue influence to deal with accidental transmutations (see below).

2.      Any time there is a transmutation, there is a “presumption of undue influence.” If one spouse gets other to transmute property, there is a rebuttable presumption of undue influence. Therefore, person who wins out has a burden to bring evidence that spouse was compensated or fully understood that they were giving away rights. That is, per §721, there is a requirement of good faith and fair dealing.


Test (to overcome presumption of undue influence)

1.      Benefit was given

2.      Understood fully that gave away benefit (can be in any form)




Difference between Transmutation and SP into CP:

When have a CP asset in this case it was never changed from CP to SP or SP to CP. That is, it has ALWAYS remained a CP asset from DOM to DOS. Therefore, issue is how do we back the SP out of the CP that was used during marriage?


Two Ways to Back SP out of CP:


1.      Lucas Case (before 1984) = If you put SP into a joint asset, it’s presumed to be a gift to CP.  The only way to overcome this presumption is a writing to the contrary (§2581).


2.      §2640 Anti-Lucas Legislation (after 1984)

a.       Law doesn’t apply retroactively, so pre-1/1/1984, Lucas is law

b.      Rule (§2640): You will get dollar for dollar (very objective and formulaic) back off the top to the extent that the SP was for the acquisition, principle reduction, or improvements. Not for interest, dividends, etc.

c.       Thus, if you are paying a mortgage with SP esp. in beginning, you will be paying most $ in interest, therefore, won’t get this back, rather only any principal you are paying off. Also, if put in 123,456 into downpayment, will get 123,456 back exactly (dollar for dollar).


Importance of getting $ back “off the top”:

1.      Not all assets go up in value.

2.      Example = 50k into car of own SP. Car cost 75k. At time of Trial, car is worth 25k. Conclusion, you will get 25k back and that’s it, even though lose $. Can’t take $ lost from other assets. Each asset considered individually this way.

3.      However, if buy House1 and then sell and use proceeds to obtain House2, then House3, etc. You can trace your $25k from House1 to House4. These are not considered separate assets. This $ goes through. Note: you have to show that your specific SP was rolled into new house. This is important. If put in 25k in H1 and this went up to 75k in equity, then you put 50k into H2, you WONT be able to get original 25k back because CANT trace your 25k because the 25k kept from H1 to H2 ruins ability to trace [will deal with this later on].


Discussion of first two ways: (1) transmutation and (2) SP ---> CP


1.      Rule = Anytime you have a transmutation from SP into CP, you will have a §2640 problem – two work hand in hand.

2.      Rationale: if have a house and transmute it. At day of transmutation, I have $100k in equity in house then this $100k becomes my §2640 claim. That is, a SP into a CP asset. Legislature never contemplated this happening. You are entitled to dollar for dollar back.

3.      Example 1: you have a car that is SP and you transmute it into CP. At time of transmutation, it’s worth $50k in equity. At time of DOT, it’s worth $30k. You get all $30k because of your §2640 claim. But, $30k is all you get, even though put $50k in.

4.      Example 2: Own a house worth $50k at time of transmutation from SP to CP. At DOT, worth $500k. Will have a §2640 claim. When $500k divided, will get $50k off top, and then split $450k: total – $275k.





1.      Purpose is to back CP out of SP. There is no statute like past two; only have case law. This is why complicated.

2.      CP contribution can be in many forms, not just money (as is the case with the last with SP contribution into CP).

3.      Each asset has own formula because different values (businesses, houses, stock options, etc.)

4.      Concern is that own business is your efforts, but when married it’s not your efforts, it’s the community doing it. Community is entitled to being reimbursed.

5.      Biggest dollar figure in any business is Good Will/Reputation.




Two Formulas:



  1. Courts traditionally use this analysis in a Labor Intensive Business – a business where money is earned off your physical labor. E.g. Law Practice: won’t make money unless you physically work it.
  2. This formula will almost always favor the community.
  3. Presumption is that Labor Expended was Community Effort!!!



(1)   What was the value of the business at the DOM?

(2)   For each year married, give value a reasonable rate of return (RRR).

a.       This is compounded on an annual basis. Before, if failed to identify a RRR, used Legal Rate of Interest (10%). But no one will use this in today’s market because will use RRR. RRR today is about 3%.

(3)   Result is SP. Rest is CP. Most businesses will be valued as closely to the DOT as possible. CP is benefited here more.


Van Camp

  1. This analysis is traditionally used for Capital Intensive Business. E.g. Junior Seau’s business – he doesn’t flip hamburgers, just invested $ in it.
  2. Capital intensive means $ and this money is what is responsible for making more money, not labor.
  3. This formula will always favor separate property holder because people usually spend what they earn; that is, will spend the reasonable value of services (see below).



(1)   What is reasonable value of your services?

a.       That is, how much would we have to pay someone to do what you were doing? This is the CP portion of the business.

b.      Cord v. Neuhoff = Must determine value on a year by year basis. Therefore, if need to determine this over the course of 30 years, have to do an analysis for EACH year.

(2)   Subtract what the community received out of this reasonable value. This will knock it down considerably.

(3)   Result is CP


Beam v. Bank of America

H inherited money: 1.6 M. Over the course of 29 years only made about 200k. Not very much $ - about a .001% annual return.


Periera Analysis

  1. RRR = used 2 or 3%.
  2. On a compounded basis, multiplied over 29 years, will be well over 200k. Therefore, the RRR would have out-stripped the actual return. So H takes all of the money.
  3. W get zero. Everything goes to H as his SP.


Van Camp Analysis

1.      Reasonable value is 1% of the corpus. Which is 17k a year. Therefore, over the course of marriage is $357,000, which is CP. W wants ½ of this.

2.      But, spent $2k a month on living expenses and more $ on travel and gifts.

3.      Therefore, what Community received exceeded the reasonable value of his services.

4.      W loses. H gets everything because did factor in what you have to back out what you received.


Gilmore v. Gilmore

H owned several auto dealerships. Increased from 200k to 800k over the course of 6 years. Success of business is really a result of his capital investment because period of time was very good for industry.


Periera Analysis

  1. 5% return as RRR.
  2. 260k is SP; CP is 550k
  3. W gets 225k if used this analysis.


Van Camp Analysis

  1. Court used this analysis because success was NOT because of his labor but rather a good investment at the right time.
  2. Court held that what he received in salary was equal to reasonable value of services.  
  3. Therefore, CP is zero.
  4. SP is the whole sum



What if business declined for a few years but then went back up?


DOM = value is $100k

After 5 years = $20,000

DOS = $140,000


Point = you ignore any VARIATIONS between DOM and DOS. Therefore, you only look at DOM value and DOS value in analysis.


**Only exception where court allowed variance is the Denney Case.




**Don’t use an accounting analysis for valuation!


Four (4) assets to consider when dividing a business:


1.      Tangible Assets

a.       Physical assets of the business; e.g. phones, desks, computers

b.      Fair Market Value (what could sell asset for now on open market); not depreciated value


2.      Intangible assets

a.       E.g. Copy rights, patents, favorable leases, liquor licenses


3.      Accounts Payable and Accounts Receivable

a.       What you owe (AP) and what you are to be paid (AR).

b.      AR is tricky because could have clients, like lawyers, doctors, where work on contingency or don’t get paid for 1-2 years. What if get divorced halfway through work and 1 year before get paid?

c.       Have to go in and look at all assets. There is no right to privacy for spouse, have right to look at all records. Problems if part of a partnership and people don’t want your spouse looking at records.

d.      Point = make sure to account for all assets that parties may have; if not would be malpractice


4.      Goodwill (see handout)

a.       Defined = Anticipation of future business – value of expected revenues based upon your standing in the community.

b.      If you build that reputation while married, it is community, is what will be divided. Hard part is how to quantify this – put a dollar figure on this?


Two Types of Good will:


1.      Business Goodwill = Easy category – has a Market value because it’s sellable; customer has no idea who owns it. E.g. a McDonald’s franchise. Don’t have to worry about goodwill because there is a FMV for this. Market will dictate what sales price is. If FMV is $1M and accounts payable is $100k then Goodwill is $900k.


2.      Professional Goodwill = E.g. Bob’s Law Firm. You can’t look at market value because you can’t value Bob’s practice minus Bob. That is, the person is part of the value of business.

a.       CA Rule = must value business without sale. That is, how do we value Bob’s law practice with him part of it. Cases are about this.

b.      Excess Capitalization Method (used to value goodwill) [Marriage of Foster]

                                                  i.      This method is used exclusively in CA courts.

                                                ii.      Out of Foster came the method of excess capitalization.

                                              iii.      Formula:

1.      What would you pay a fungible person to do your job?

a.       E.g. Bob makes $300k per year while John makes $100k doing same thing.

b.      $200k is amount attributable to goodwill

2.      Multiply this by a factor of anywhere from one to ten (called an “excess capitalization rate”).

a.       This is a multiplier to compensate community for goodwill into future.

b.      Rationale = reputation that developed will continue to grow after divorce. This makes formula subjective. Wouldn’t this make sense that community would share in additional years? Problem is what happens if you die or you have an accident and can’t practice or other scenarios and you are unable to proceed.

c.       In re: marriage of Lukens Factors = contributing to goodwill include: age, health, past earning power, reputation in community for judgment, skill, and knowledge, and his comparative professional success.

d.      Point = excess capitalization rate is based on these FACTORS. The higher the rate the more $ client will have to pay. Usually won’t be more than 3-4 because don’t want to destroy the person’s business, as this is the source to pay the spouse.




Two (2) Types of Qualified Plans

Tax will be deferred until you retire. Theory is that you will be making less money when retired so will get a tax benefit by being in a lower bracket.


Defined Contribution Plans

  1. Parties and the employer each are contributing to this plan. Usually employer matches employee contribution.
  2. E.g. 401K, 403B, ESOP
  3. For community property issues, this is an easy accounting method because just need to find out what contribution was between DOM and DOS.


Defined Benefit Plans

  1. More complex problem. See Brown and b cases
  2. This kind of plan is a promise to pay. E.g. if you work for me for 30 years, I’ll pay you the average of the last 3 years salary for the rest of your life.
  3. Example:
    1. Date of employment = 1980
    2. DOM = 1990
    3. DOS = 2000
    4. Maturity (when you can receive pension or benefit plan – vesting date) = 2010
  4. Problems = Difficult because there is no money there, just a promise to pay. If you quit early, you get nothing. Also, how do we know what these values are? How define value when don’t know what last years of salary is? Also, don’t know what pension value is because don’t know how many years you will live. Also, if you quit job before maturity, then you don’t get anything!
  5. Don’t want to use an “Actuary” because is wrong since based on averages. Things can happen which could change result. Don’t want to take this chance since pensions are huge amounts of money. Only work well for very short marriages.


Brown Case

  1. Brown overruled French Case. French said that nothing existed until pension vested, until then it is not property. Therefore, if get divorced before maturity, W gets nothing.
  2. Brown analogized this to a personal injury case (accounts receivable). It doesn’t matter that it wasn’t vested.
  3. Holding = regardless if matured or vested, a portion to community (1/2 between DOM and DOS)


Brown Timeline Formula:


                         CP% =           Total # of months married while employed

                                                            Total # of months employed



1.      Always use MONTHS

2.      At DOT will only know numerator and not denominator. This is because don’t know when spouse will retire.



1.      CP% = 120 months / 240 months = 50%

2.      Total Pension = $100k; CP = $500; H gets $750; W gets $250.

3.      This amount will be paid for the rest of your client’s life.

4.      This is not support. It doesn’t matter if spouse gets married or becomes really rich. 



Gilmore Case

Employment, DOM, DOS, date of maturity, in that order.  But at age 60, H doesn’t quit working… works past date of maturity.  W says the retirement $ is her asset too (equal division rule).  Problem is that W can’t force the company to pay her share now. 


Rule = H cannot unilaterally prevent W from collecting CP funds. Mr. G can work past maturity but cannot deprive Mrs. G part of the pension. $ comes out of H’s pocket - H argues he’s forced into retirement, but court doesn’t care


Gilmore Election Formula


CP% =               Total # of months married while employed

                        Total months employed until Gilmore election



1.      This addresses the problem if H makes increased salary after date of maturity.

2.      A Gilmore Election can be exercised at anytime from date of maturity to date of retirement.

3.      Therefore, if W chooses to get her share (Gilmore Election) at date of maturity, just find out what he is paid during this time. BUT she loses out on any potential growth.

4.      Ex. If goes from janitor to CEO and pension goes from $1,000 to $10,000, she LOSES out.


Point = W locks herself into size of the pension at date of Gilmore Election.



1.      The earlier you exercise you Gilmore Election, you will get a bigger portion because denominator will be smaller (fewer months worked at earlier time)! But pension will be less (potentially), if salary increases.

2.      Gilmore Election only in CA. Federal Government doesn’t support this. Thus, this will be a problem with reporting taxes. Solution: stipulate for tax purposes Gilmore election will be spousal support (which is tax deductible).

3.      Why don’t we give spouse a share of pension for what it would have been between DOM and DOS? Because is it fair to give more $ later when not married.

a.       Answer = CA is a minority in doing later salary amount. Most states will do above.


Example of Brown/Gilmore Problem

DOE = 1975

DOM = 1980

DOS = 1990

Maturity = 1995

Actual Retirement = 2005




1.      120/360 = CP%

2.      33.33%/2 = 16.66% - this is because W gets only ½ of CP

3.      At 2005 Retirement =$5000 (e.g.)


Therefore, client gets 16.66% of $5000 = $833/month (in 2005)




1.      120/240 = CP%

2.      50%/2 = 25%

3.      At 1995 Retirement = $2000


Therefore, Client gets 25% of 2000 = $500 (in 1995).


Note: Spouse in a Gilmore Election will always be a HIGHER percentage than Brown percentage. But will be a higher percentage of a theoretically SMALLER pie. Also, if decide to wait for actual retirement, you will be giving up the $500/month, which could have. Therefore, by actual retirement, will have given up $60k which is 15 years of the Gilmore amount. Need to make a judgment. Remember that this money will be paid for rest of your life.



What happens when spouse dies?


ERISA = Employee Retirement Income Security Act

  1. ERISA is a federal act that dictates how defined benefit programs are going to be administered uniformly throughout country.
  2. Basic Rule = ERISA banned Terminable Interest Rule, so pensions run until both parties die.
  3. If Non-Employed Spouse Dies First (E.g. W):
    1. Since pension is still part of W’s estate (CP asset, NOT support), it will flow to whomever she leaves it.
  4. If Employed Spouse Dies First (E.g. H):
    1. Survivor Benefit Plan = covers W from death of H to her own death.

                                                              i.      SBP requires a premium that must pay until comes into effect (employed dies) – remember that might not ever come into effect if employed outlives non-employed.

                                                            ii.      Different levels of Survivor Benefit Plans

1.      Each level will have a different premium.

2.      Usually the more the monthly annuity, the higher premium will be.

                                                          iii.      Can’t opt for SBP until actually retire. You have 30 days after retirement to opt out of SBP.

                                                          iv.      How it works in a DISO action: Although the SBP can’t be entered into until a person actually retires, in a DISO, the pension plan is joined into the action by the court. The court orders the pension plan to enter the parties into the SBP when employed spouse ACTUALLY retires. The court further orders who the beneficiary will be and at what level the SBP is selected. Thus, even if there is a subsequent spouse, the SBP is already locked into.

                                                            v.      ERISA does NOT require payment to other than first spouse. If employed is divorced and then remarried, the SBP compensation will go to first spouse (ex-spouse). Other spouses will have to sue first spouse to get own share (doesn’t really happen in practice).

                                                          vi.      This is why don’t have “defined benefit plans” present day. They are too expensive to maintain. Example: What if 60 and receive a pension. You marry a 25 year old. You die when you are 62. Pension has to cover 25 year old until dies.

  1. QDRO: Qualified Domestic Relations Order (296) – CREATED BY ERISA
    1. Definition = This is a court drafted order for how retirement will be allocated.
    2. You must first join pension plan into the DISO (dissolution of marriage) the first day of the case. Do this so employed spouse doesn’t buy way out of pension plan. You want court to be able to make orders over pension plan so have to join the pension plan. This includes a restraining order over funds.
    3. This is considered per-se indispensable.
    4. Court will rule on the pension since under its order:

                                                              i.      Brown or Gilmore Analysis: will create the numerator but won’t know the denominator.

                                                            ii.      Will then tell company that when person retires or when a Gilmore election is made, the company will do the calculations.

                                                          iii.      Must enter SBP at preset level determined (see above) and lock in beneficiary.

                                                          iv.      The company must approve it by signing it.

                                                            v.      The Judge will then sign it and serve it on the employer.

                                                          vi.      Attorney has 1 year from DOJ to complete QDRO. Then, attorney’s job is done.

    1. Point = once all these factors have been satisfied, it will be considered a QDRO. When spouse actually retires, the ex spouse doesn’t have to worry about it. The company will bifurcate the payments and give two separate retirements. That is, once qualified, the company will take care of all the payments.


Marriage of Gowan – Broken Service

DOM = 1957

DOS = 1979

Emp = 1960-74; **time off**; 1989-94


H worked for company for a time and then stopped. He then started working for company again.

Holding = Court combined the two periods of time together for the denominator (60-74 + 89-94) for Brown Timeline formula.


Gowan Formula:


CP% =            Total Number of Months Married while Employed  = same as Brown

                                                 Total Number of Months Employed



Rationale = since company added second employment to pension computation, will add years together for Brown Formula.


Point = Broken service is ADDED even though second employment was an individual effort and accounted for more $ (way more) than first employment.

    1. Why is pension earned during second employment a function of community efforts during first half? Seems insane.
    2. If would have been with another employer, would have NOT had a case.


Marriage of Jones – Disability Pay: NO VESTED Pension


**Disability pay is TAX FREE!**


Disability given for two reasons:

  1. Compensate for loss of wages
  2. Pain & Suffering


Holding = Disability is NOT a CP Asset


Marriage of Stenquist – Disability Pay: VESTED Pension

DOE = 1944; DOM = 1950; RET = 1970; DOS = 1974

Facts = H was in military.  He injured himself early in career, so could have taken disability retirement.  If he had taken disability then, would have been SP because Disability is not a CP asset - reimbursement for loss of future earnings, not past efforts).  However, he kept working until he had a vested pension (longevity retirement). Turned out he got more money if he took disability… plus, it was tax free. 

Holding = H can’t unilaterally waive W’s vested property rights. Since disability worked out to 75% of base pay and longevity was 65%, court said H had to share up to 65% under CP principles. The remaining 10% was SP

Note = After Stenquist, SC reinterpreted 10 U.S.C. § 1408 to exempt military. Therefore, Stenquist applies to all federal jdx’s except for the military (b/c military is ordered into CA jdx). H won b/c he was military.


Marriage of Wright – Severance Pay

W and Father say that will ruin H financially is didn’t leave work. Gave him severance pay of $24k. W argues that this is for severance pay – it’s a buyout of retirement.

Holding = Severance pay is also not CP because it compensates for lost future earnings, not past service. $ wasn’t given to H as a result of compensation for past efforts. $ was given to him because boss was out to get him. Thus, since was going to be fired and would have a hard time finding job in future, was going to compensate him for this.

Point = Need to look at the real reason for giving the money.  In this case, the money was truly given as a severance pay.  Severance pay is not community property, so it is not divisible.


Marriage of Lehman – Early Retirement Benefits


Enhancement of Retirements = if you quit right now, we will pretend you worked for longer time period. Therefore, retirement will be higher. Problem is that no one worked extra time. It’s just a fiction. Just pretending that worked for time period.


Issue = Is extra time CP or SP? Note that if “add” time to denominator, spouse will get less, if don’t spouse gets a higher %.

Holding = Court is going to ignore the extra time so spouse will get a higher %. That is, will take the actual amount that gets (higher $) but will not include time in the denominator, just pretend extra time never existed. Therefore, spouse gets windfall.

Point = this is a double-win for the spouse: (1) didn’t add time to denominator so spouse gets bigger percentage; (2) used the actual retirement $ amount, so divided up the bigger $ share (which is a result of enhancement).




CP% =                        Total number of months employed while married

Actual number months employed (don’t add the enhancement time)


Stock Options


Overview: An alternative to Defined Benefit Plan for Retirement Plans. Have a “potential” for great earning capacity. Good for company because options only make money if company makes money. If share price not doing well, then company won’t lose money on options because won’t want to exercise them.



  1. Date of granting = Corporation gives you 10k options on a yearly basis: e.g. 2001, 2002, 2003, etc.
  2. Date of vesting = 2-5 years out. Therefore, e.g. 2003 can exercise the options. This means that can buy each share for a predetermined price (e.g. $1.). If you are not employed at date of exercisability then LOSE options. Therefore, “golden handcuffs” to stay with the company.


Problem = What is SP? What is CP? Clearly is exercisable before marriage, then SP. Conversely, if exercisable during marriage is CP.


Marriage of Hug – How you deal with Stock Options


Issue = Need to choose which of TWO FORUMLAS to use:


Hug Timeline Formula


CP%    =          Date of Employment – DOS

                                    Date of Employment – DOE(xercisabilty)


When used: If you are hired with the idea that stock option is an inducement to come and work for company (because of ability and skill) idea is that this was due to performance in past – community effort.


Nelson Formula:


CP %   =                     Date of Granting – DOS

                                    Date of Granting – DOE(xercisability)


When used: Stock options granted WHILE employed not as an inducement for you to come.


Point = have to look behind the scenes to see reason for granting of stock. Nelson will usually give CP a SMALLER Percent. Also, have to do an analysis for each year because will have different dates of granting and different dates of exercisability which will affect results of formula. [CP % will change]


REAL PROPERTY (including Rental Property + Capital Improvements on SP asset paid for by CP)


Moore Formula = exclusive remedy for backing CP out of a Real Property SP


Moore Case Overview

  1. Moore case says that when backing CP out, will ONLY back out Principle Reduction pay – NOT interest, taxes, etc.
  2. Example = a SP house owned before marriage. House remains in one person’s name. Payments are made with CP assets. Thus, CP contribution into SP asset.
  3. Problem = when paying off most loans, the first few years, most of your payment goes to paying off the interest – little principle is paid off. Thus, with Moore, interest is ignored. Therefore, little CP is backed out. Non-SP asset spouse gets screwed if married for first ten years of mortgage payments versus LAST TEN years of mortgage payments. Will get much more CP back from last ten years of 30 year fixed formula.
  4. Another problem is that this formula is predicated on premise that property value goes up = capital appreciation. If CA doesn’t exist, this formula does not exist. CP will get nothing if does not appreciate.



Purchase price = $56,640.97

Down payment = $16, 640.57

Before Marriage principle paydown = $245 principal paid off

Post Separation principle paydown = $581.07

SP Total = $17,466.87


CP Pay Down of principle = $5,986.20

Capital Appreciation = $103,359.43




Purchase Price – CP Pay Down           =        SP%

              Purchase Price


Capital Appreciation = Fair Market Value at DOT (not DOS) – Purchase Price


(C.A. x SP %) + SP Pay Down (down payments + before marriage payments + post separation payments) = SP Total Amount


Example for Determining SP Total:


$56000-$6000 = 90%



CA = $100,000


$100,000 x 90% = $90,000


$90,000 + $18,000 = $108,000 (SP Total)


NOTE: (1) SP total and CP total equal FMV of home. (2) CP is divided in half.




Marsden Case

Person had purchased to house a long time before marriage and house experience significant C.A. before DOM.

Holding = Pre-marital CA goes to the SP holder! Contrast to Moore where CA was used to split between CP AND SP – this is because there was not significant CA before marriage because house purchased just before marriage.

Point = only use CA acquired from DOM to DOT. The CA before DOM belongs to SP holder.

Problem = how do we value the house at the DOM? Have comparison statistics to help you with figuring this out.


**Therefore, Formula for Capital Appreciation becomes FMV at DOT – DOM. Leave PRE-DOM to SP.


Walrath Case

Issue = SP house, during DOM-DOS, it is refinanced and $ is pulled from house. Very common. This will increase principle owed on house.

Rule = If $ is used for CP property purposes, reduce the CP Pay down by this amount. If used for SP purposes, reduce the SP Pay down amount by this. Moore/Marsden Formula remains the same


Rental Property

Point = use Moore/Marsden formula.

Question = What happens if rental property is a truly negative property – is this reimbursable? E.g. mortgage and other costs are $1000 but rent is only $700 a month. Losing $300 a month. Therefore, Community is losing $ each month.

Answer = No. Moore/Marsden is sole remedy for Rental property, therefore, money is lost because if no capital appreciation, no formula (because multiply % by C.A.).


Capital Improvements

Use Moore/Marsden formula. This questionable from an evidentiary perspective.


Review of all three (3) ways can come into office

Example: transmutation of a SP into CP; at time of transmutation house has equity of $200k.

**See graph on handout**

Different Issues:

  1. Moore analysis from DOM to Transmutation (because a SP asset until then)
  2. Transmutations analysis, §852, MacDonald
  3. Built-in §2640 problem with Transmutation.
  4. From Date of Transmutation to DOS is CP and divided in half.



Two credits that accumulate between DOS and DOT. Since the average divorce 2-3 years, there will be issues between DOS and DOT that need to be addressed.


1.      Epstein Credit = [codified] when a community debt exists at the DOS and one party pays on the debt between the DOS and the DOT, that party is entitled to reimbursement of 50% of all they paid.

a.       Exception = Will not be entitled to Epstein credit if you are utilizing the asset the debt is on – such as living in house at issue.

b.      Not just principle reduction, but 50% of all you pay INCLUDING interest!

c.       Examples: car payments, medical bills, etc. One person will be making these payments because don’t want credit destroyed.


2.      Watts Credit = [Case law result]: Also between DOS and DOT. “Usage Credit”: If you use an asset that has a fair market rental value greater than what you are paying, community is entitled to reimbursement of 50%.

a.       Example = H remains in house. House has a FMV of $5k / month. Mortgage payment plus costs $2k / month. Difference is $3k. Since H chose to remain in house, you are costing community $3k / month. Therefore, a usage credit because using the house. Therefore, entitled to reimbursement of 50% of $3k or $1.5k.

3.      These Credits can work together: Say W was making the $2k/month payment. You would get $1k back (Epstein Credit) plus the $1.5k (Watts Credit). Therefore, will get $2.5k/month.



Family Law court only has jurisdiction to divide CP equally. However, two exceptions per state legislature: §2603 & §2641.


1.      §2603 – Personal Injury Award

a.       Old Rule (prior to 1965): Damage award would be community in nature and divided equally. This yielded some really bad results.

b.      New Rule (post 1965): (1) Presume that all of award will be an SP award to injured spouse. (2) However, with proper evidence, the parties can overcome that presumption and divide that award up – but at least 50% of award must go to injured party. Thus, the court can give up to 50% to other spouse and give 50(+)% to uninjured spouse; prorate it however they want.

                                                  i.      Note: what is important is date when injury occurred and not when monetary recovery date is. That is, if date of injury was between DOM and DOS, must then look to §2603. If occurred before DOM then ALL SP.


2.      §2641 – Community Contributions to Education or Training

a.       Traditional analysis would give spouse ½ of your degree. §2641 was passed to exempt educational degrees from being a community asset.

b.      §2641(d) = §2641 is the exclusive remedy of the community for putting you through school; can’t use civil litigation.

c.       Sullivan Case

                                                  i.      Rule = the educational degree is your separate. But, if the community spent money obtaining that educational degree, then the community is entitled to reimbursement (remember that will divide in 1/2!).

1.      Expenses must have been used for books and tuition: This means that any funds that the community spends to feed, shelter, insurance, car, etc. are NOT reimbursable. Community can’t get reimbursed for these because not “related” to education.

2.      Education must be of type to enhance your earning capacity. So if spouse was a cardiologist and went to law school, won’t enhance earning capacity.

3.      Presumption of a ten year SOL. That is, if CP contribution to obtaining the degree took place over 10 years ago, then community has already benefited from education and is NOT entitled to reimbursement.

                                                ii.      Point = when take these three conditions above, community will usually not get much back. Also, spouse will only get ½, so really won’t be much.

d.      Student Loans

                                                  i.      Any outstanding debt for tuition or books at DOS become the SP of the student. These will not

                                                ii.      Loans used for other expenses will be CP debt.

e.       Only Two Remedies Available per §2641 (community contributions to education)

                                                  i.      Reimbursement for community paying tuition and books (seen above – divide in 1/2) 

                                                ii.      §4320(b) Spousal Support = While reimbursement is primary avenue to equalization for community, nothing prevents the court from using §4320 which is the section to be used for spousal support. That is, because of restrictions for §2641, can use §4320 to figure in spousal support.

1.      Lifestyle Rule (after legislature reacted to Watt case) = “Lifestyle” is the overriding factor that §4320 considers. Court cannot order support at a level higher than had during marriage because this would violate public policy by encouraging divorces.



Holding = Have to look at “lifestyle” in context of what parties are doing. Therefore, if lifestyle is suppressed while parties are in school, should look to an anticipated lifestyle in determining spousal support. That is, will not return spouse to lifestyle while in school, but lifestyle anticipated after graduated from school.

Court went around legislative intent so Legislature reacted: they made lifestyle the overriding factor in §4320. Spousal support CAN’T be higher than lifestyle had while married.


Example of “Lifestyle Rule”:

Dr. Green is a dentist and W puts him through Dental School. H graduates and files for dissolution. W’s income was §35k per year during marriage. H made zero during marriage. By time at trial, H was a successful dentist making $100k. W is making §38k. Spousal support is based upon net disposal of each party. W seeks spousal support.

Holding = No spousal support. Can never give spousal support greater than what enjoyed during marriage. Since W is earning more than during marriage and is no longer supporting H, her lifestyle has gone up. Therefore, she can’t get spousal support.





1.      FLC §760 creates CP presumption for assets acquired between the DOM and DOS. This presumption can be overcome by tracing acquisition of asset back to SP.

2.      Spouses typically commingle SP funds w/ community assets: E.g. a joint checking account. Then they buy something from the account and the question becomes whether the SP or CP bought the asset.

3.      Since there is a presumption of CP, burden of proof falls on party asserting SP


Tracing is Done for Two Reasons

(1) Asset acquired is in own name or is an asset that is without certificate of title (like a painting).

(2) §2581 problem where property is held in joint form between the parties. Per §2640, entitled to SP contribution into it.




Family Expense Method


Based on two concepts

1) CP expenses are first paid w/ CP funds

2) Commingling of money doesn’t in or itself transmute $.


Sees v. Sees

H was VP for Sees candy. H put CP funds and SP funds into a joint account. Says that if CP income first pays for CP expenses then has to add up all CP income ($50k) and if spent all CP $ on CP expenses ($50k) then everything left: stocks, real estate, has to have been bought with SP! H just added up records at end of marriage to prove this.

Holding = H did not do calculations correctly. H’s basic analysis is correct but his mistake is that did not show that SP funds were available to purchase assets at date of acquisition. H showed that more SP available but at “end of marriage” when did all the calculations and added everything up. This was his mistake. Need to trace back to date of acquisition. See example below.

Point = Must show SP funds were available to purchases assets at date of acquisition.



Put in $20k in CP. Then put in $15k SP. Then put in $5k CP. Then put in $5k SP. Then pay a medical expense of $15k. Then go on vacation and spend $10k. Then invest in equity and spend $15k.

Holding = even though this account is “commingled” can still determine SP. This is because CP put in a total of $25k. But then CP spent $25k on medical costs and vacation. Since CP is presumed to be used first for CP expenses, can then prove that rest of things purchased were from SP.


Direct Method (determined by Hicks case, seen in Mix case)


Rule = to show direct tracing, must show that money was SP and then put into a joint account (commingled) but then taken out within a short period of time (around 30 days) and used to purchase an asset. To overcome community presumption must have GOOD RECORDS of transaction showing SP source. Idea is that simply used joint account temporarily to hold funds that were intended to purchase a certain asset.


Mix Case (bad result)

W was able to overcome CP presumption by using her own testimony that she had intended funds to be SP. This is bootstrapping and not a good result.




General Rule = CP includes all things acquired from DOM-DOS, including debts and liabilities


Two Exceptions to the Equal Division Rule of DEBTS


1.      Truly Negative Estate §2622(B): [Debts outweigh the Assets] = Court can award this debt to whomever equity demands – to the person most able to pay it (not necessarily the person most responsible). That is, court has discretion to divide up excess debts however want. On the other hand, debt up to amount you have in assets has to be divided equally.

a.       Example: Debt is $500k. Assets only have $300k. Negative estate of $200k. Therefore, up to $300k have to divide equally. The remaining $200k can be divided up per discretion of court (who is most able to pay).

2.      3rd Party Creditors = even if FLC awards debt to one party, a 3rd party creditor can go after either or both spouses. Creditors can‘t be divested of a vested property right.

a.       Problem: in a situation where a spouse agrees to take all debt and if other spouse waives spousal support. But what could happen is spouse who took debt doesn’t pay debt or files bankruptcy and creditor goes after other spouse who doesn’t even have spousal support.

b.      Bankruptcy is in federal court and has jurisdiction over Family Law Court.

c.       Point = Remember that as long as debt is out there, can be on the hook to creditors. Have to be careful in FLC when dividing debt – have to consider that creditors will be out there regardless of what FLC says and you can’t protect your client.


Analyze Debts Pursuant to Three Different Time Frames


1.      Debt Before DOM

a.       §910 = when marry someone, you marry their debts. Community Estate is responsible for that debt such as spousal/credit support from pre-existing relationship. Creditor can go after any community estate to reach SP debt.

                                                  i.      Exception [§911(a)] = As long as the non-debting spouse takes their earnings and keeps it in an account that other spouse is not authorized to withdraw from, they can prevent those funds from being taken by the creditor. On the other hand, as soon as they put these funds into a joint asset (house, car, bank account), that asset becomes fair game for the creditors to come after them.

b.      Community is entitled to limited reimbursements for $ used on SP Debt [§920(c)(1)]

                                                  i.      There is a 3 year SOL that is not tolled by the fact that marriage is continuing to proceed. Therefore, if have used CP funds for SP debt, have 3 years to get reimbursement. But in reality, who is going to seek reimbursement while still married? Example: You have a SP car that still has three years of payments. Get married and use CP funds on car. Stay married for another three years. Won’t be able to get reimbursement for this.

                                                ii.      Money community has expended for child support: there is (1) a 3 year SOL and a requirement that says (2) community is entitled to reimbursement only if at time child support payment is made (from a previous marriage), owing spouse must have had sufficient SP income (income from an asset you have before marriage – rental property, trust fund, pension, etc. as long as income and not an asset) available to pay the debt on own and not with CP funds. Point is this is very unlikely to happen.  

c.       Any balance on that SP debt at DOS, reverts back to your SP.


2.      Debts created between DOM and DOS

a.       Debts will be presumed to be community debts regardless of how silly or unfair they are – such as when a spouse takes CP funds and creates a debt at racetrack.

b.      Three (3) Exceptions to Presumption (may be more) => Thus SP Debt. Person who wants to show exception has the burden of proof:

                                                  i.      (1) Debt was created in anticipation of dissolution: Look to proximity in relation to dissolution. Ordinarily this is not a problem because will be obvious, e.g. attorney’s fees. However, there are problems when spouses start hiding away money years before dissolution. Harder to prove that created debt in anticipation of dissolution.

                                                ii.      (2)  Debt is NOT for the benefit of the community: If you go lose money at racetrack, considered benefit for the community because you are the community. That is, benefit for a party still is a benefit for the community. Therefore, to overcome presumption, benefit is for a 3rd party without spouse knowledge (e.g. mistress). That is, $ spent on mistress (jewelry, hotels, flowers) is NOT for the benefit of the community. This is for public policy reasons, so can’t argue that for benefit of the community.

1.      A Non-Mistress Example: Borrowing $ for sister’s college education without spouse’s knowledge.

2.      Where draw line? What if used $ to see dirty movies. At what point will NOT be for benefit of the community. A big gray area. Once get past mistress relationship, court is more hesitant to find that have overcome presumption.

                                              iii.      (3) Debt is created for an intentional, wrongful act: An example would be a mayor whose spouse is prosecuted for embezzlement. During the course of prosecution, used an expensive criminal defense lawyer. Since the embezzlement was an intentional, wrongful act, the debt is SP. Have to convince FLC that committed act by preponderance of the evidence.

1.      Court uses this a lot in areas of DUIs, where rack up a lot of debt because of fees. Court finds these to be an Intentional, Wrongful Act.

2.      Contrast to a Negligence Case – Do NOT overcome presumption:  Guy didn’t pay his taxes for 3 years because thought it was unconstitutional. IRS went after him. His wife filed taxes separately. By the time he paid all fees, owed $70k. Took this $ out of home (CP). Court found his actions were stupid and negligent but not intentional and wrongful. 


3.      Debts created between DOS and DOJ

a.       §914: Liability is extended to DOJ for the “Necessaries of life.” This could be interpreted as shelter, clothing, food, etc. but court has not stretched it that far. Court usually interprets necessaries as only covering medical coverage and care that has been extended to an individual between DOS and DOJ.

                                                  i.      Since 6-10% of people separate but never get divorced, their “necks” are still on the line until actual DOJ. This could rack up a lot of $.


Note = when do dissolution planning, need to address these debt concerns to protect client and not just pass debt out “like candy.”




§721: Fiduciary Relationship between Husband and Wife

Duty of good faith and fair dealing between spouses – can’t take unfair advantage of each other.


§2102: Fiduciary Responsibility Extended to DOJ.

  1. The fiduciary responsibility extends from the DOS to DOJ. This is a duty to affirmatively disclose all assets, liabilities, and all material facts regarding earnings, investment possibilities, and all info we have regarding value of a particular asset and the value of the debts. This is a strange result because you are suing other person but still have a fiduciary responsibility towards them. Rationale for duty is to prevent people from hiding assets.
  2. Example of duty: you have a law practice. If you have someone come in and value the business but they do a bad job, you can’t throw it away. You are required to expose this appraisal to spouse.
  3. Court retains jurisdiction forever to re-open case if 1 party has lied. Therefore, could have a situation where an ex-wife, years after dissolution, find out that ex-husband did not disclose certain things. She could take him to court over this.
  4. Must look at two time frames
    1. DOM to DOS
    2. DOS to DOJ
  5. What is a breach of fiduciary duty?
    1. Fiduciary duty must be decided on a case by case basis.
    2. General rule is that spouses have duty to treat each other like business partners. This goes beyond mere disclosure to informing them of what you know (“duty of highest good faith and fair dealing”). Thus, if spouse has a knowledge other lacks, and doesn’t share this knowledge and  explain investment opportunity, then probably violating duty (just like you would be if happened with a business partner). But, this is a gray area and not resolved (see Somps case).
  6. Somps Case – example of DOM to DOS
    1. H had funds that had ability (either from SP or CP) to use in investing into development property. He chose to use SP funds. Was able to trace this and overcome CP presumption. §2102 says have to disclose investment liabilities. Court held that H didn’t breach his FD.
    2. WESLEY DISAGREES – he should have disclosed this and therefore breached is FD. Thus, business was CP in nature.


§2104 & §2105: Declarations of Disclosure

1.      Must disclose in writing all of those factors laid out in §2104: income, investment opportunities, liabilities. Encompasses everything in §2102, including SP (whatever you have “interest” in)

a.       Writing is considered the exclusive demonstration of disclosure.

2.      Must disclose at least TWICE.

a.       A preliminary one when divorce is filed

b.      A final one at of around time of judgment

c.       [And anytime in between if assets change!!]

3.      Must serve upon the court a declaration that you have delivered to other side a declaration of disclosure.

4.      Court has jurisdiction to reopen case if you failed to disclose the assets – remain on the hook indefinitely.


Three Sections on Breaches of Fiduciary Responsibility


Remedies (§1101)

1.      Ordinarily, the court is to divide the asset 50/50 if person fails to disclose it.

2.      But under §3294, the remedy is at least 100% to the non-offending spouse if breach was result of fraud, malice, or oppression.

a.       Thus, if there was a significant asset which has not been listed on declaration, court will determine this as fraud (usually) and will give all of it to ex-spouse. However, if was done by mistake and not fraud, will divide it 50/50.


Personal Property (§1100)

1.      Rule = Don’t need written permission to sell as long as you get FMV.

2.      Exceptions: furnishings for house, spouses clothes – need permission from other side

a.       Moore Case: H drank a lot. H sold personal property to buy booze. Court held that didn’t breach fiduciary duty because received FMV for assets. This wasn’t considered an exception to Debt rule because did benefit the community.

b.      Beltran Case: H had a military retirement. After DOS, he committed criminal acts so lost pension rights. Court held that this was breach of fiduciary responsibility. What is difference from above? In this case, there is an exception to Debt rule: a wrongful and intentional act (criminal charge).


Real Property (§1102)

1.      Rule = need written consent of other spouse if going to dispose of community real property. Have one (1) year from transaction to go in and set aside that transaction.

2.      If try to set aside transaction, run into problem with creditor:

3.      Lezine Case = H unilaterally transferred a security interest on house after W wouldn’t let him get a loan on the house. H forged her signature and put house in his name only. H then got $ and disappeared. W set aside transaction per §1102 (within one year required time frame). But, creditors file a lien and get a $ judgment, so W if basically screwed. Remember that debts can be collected by creditors from either spouse if debt is on community estate (between DOM and DOS)! Therefore, setting aside transaction did no good. Court won’t set aside the lien from the creditors.

a.       What about debt exceptions? They don’t apply to 3rd party creditors. So, even though W could sue H based upon exceptions, is still screwed by creditors.

b.      Note = result would have been different if H had did what he did after DOS!




Misconception = PMAs don’t protect items you bring into marriage. That’s your SP. They protect assets acquired from DOM-DOS.


Uniform Premarital Agreement Act (§1600)

1.      Before UPAA adopted in 1985, PMAs were just Ks – you could go into civil court.

2.      Took out of K law and gave FLC exclusive jurisdiction.


What can you do with a PMA?

§1612: as long as it deals with property, you can do just about anything you want.


What can’t you do with a PMA?

1.      Can’t address child support or child custody.

2.      Can’t do anything that violates public policy

a.        This includes anything that promotes the dissolution of marriage. This is up to court to decide on a case-case basis.

3.      If any of the above is included in a premarital agreement makes that agreement INVALID Per Se.

4.      Note: all premarital agreements promote dissolution of marriage in some form. Statistics support this.


** CA has an overwhelming desire to make PMA valid (Underlying principle of state legislature and state courts).


Marriage of Noghrey

Got married, and night before wedding H offered to give W a house and $500K, or ½ of his estate. Wrote this on back of a napkin. Therefore, if she gets divorced she gets a house and $500k or ½ of his estate, whatever is greater. She files divorce 7.5 months afterwards. Issue is whether she got divorced for money?.

Holding = PMA was held to promote dissolution and is thus invalid. But remember for other cases to deal with on particular facts on a case-case basis.


Barry Bonds Case – changed rules

Married a Swedish woman (English her second language). At time was making 100k a year. When divorced making $8M. On way to Vegas to get married, they stop at Bonds attorney’s office. They give W a PMA. They said she doesn’t have to sign it and can get a lawyer but plane is waiting for them and can’t get married unless she presently signs it. She signed it and they got married.

Issue = was PMA valid? Real question is was it entered into VOLUNTARILY?

Holding = Fiduciary Duty does not apply because these people were not married. Voluntary requirement is in between FD of spouses and two people negotiating a commercial contract. Putting fiancés in position of married couple, would shift voluntary responsibility to person not seeking to have PMA set aside. Therefore, burden of proof is on person seeking to have the PMA set aside. Therefore, you are going to have to show some type of coercion or undue influence for court to infer that NOT voluntary. Upheld Bond’s PMA.

Point = court made it nearly impossible to find that did not enter into PMA voluntarily. This rewrote the whole definition of voluntariness!!


Pendelton & Fireman Case

“Permanency is no longer a characteristic of modern marriage.” Purpose of UPAA is to ensure PMAs are enforceable. Holding = No longer violative of public policy to waive spousal support!!!


**As a result of Bonds/Pendelton, State legislature rewrote statutes concerning PMAs


To Make PMA Valid

1.      Must be in writing

2.      Must be entered into voluntarily

a.       Did person fully understand what they were doing; did person act freely?

b.      Nothing in requirements that each party have their own attorney. But each party having attorney supports meeting the ‘voluntary requirement.’

3.      Can’t be unconscionable at the time of execution.

a.       “At the time of execution” is CRITICAL.

4.      Full Disclosure of all assets and liabilities OR a Waiver of full disclosure

a.       Courts have hard time with obliging a waiver of full disclosure.

b.      WESLEY says that should have a full written disclosure; the more complete the better because will make more valid.

5.      Agreement must be in language parties are fluent in

a.       This addresses the problem in Bonds.

6.      If waive spousal support, must be represented by independent counsel

7.      Even if you have independent counsel when waive spousal support, if PMA is unconscionable at the time of enforcement (not execution), then that waiver can be rejected.

a.       E.g. if during course of marriage, spouse stays home with children, can set up a position of unconscionability at time of enforcement. This causes a lot of litigation, putting people back in court system (PMA was supposed to mitigate this).

8.      Must be given notice in writing that have a right to independent counsel

9.      PMA must be given to spouse and spouse must sign waiver of counsel at least seven (7) days before sign PMA.

10.  If not independent counsel, there must be a 3rd party full explanation of rights in writing

a.       In practical terms, means that you must have counsel.


**Remember that PMA can’t address child support & child custody or do anything that violates public policy, which includes anything that promotes dissolution of marriage.


Two Different Types of PMAs

  1. Person who just waives one type of asset – such as not wanting pension to become CP. These are easy to do.
  2. Person doesn’t want anything to be CP – want to totally re-write the CP statutes.
    1. Will set up three checking accounts: H, W, CP account; agree that parties feed the CP account at different levels. Only $ goes to is for assets that don’t have any residual value (e.g. SDG&E bill). As long as the parties keep the records straight. Problems arise from improper commingling
    2. No rules here; it’s not like dividing CP 50/50. You can negotiate any factors you want. E.g. you give me $100k a year and I will waive X (just make sure don’t promote dissolution – pursuant to Noghery.




  1. Transfers between spouses – non taxable event
    1. DRTRA says that transactions between spouses are going to be tax-free events.
    2. If IRA has a value of $500k, an equal division will be $250k. But IRA is not a tax-free event. When start receiving it, you will start paying taxes on it (unearned income). Therefore, if you buy out pension on other side for $250k, will be getting ripped off b/c of taxes.
    3. If have a house, not only will have to pay capital gains tax but will have to pay closing fees (7%). Thus, must assess consequences down the road, despite tax-free between spouses. Thus, won’t buy spouse out at full value.
    4. Fonstein Case = court won’t get involved in future tax considerations. Only ones that are immediate and specific at the DISO (e.g. house sells at DOT). This makes sense because how will court know what tax consequences will be down the road?
    5. Point = if transfer assets between spouses can NOT rely on court. Attorneys must make these decisions. Can’t just divide pursuant to FMV. Must assess tax consequences.


  1. Transfer to a 3rd party – taxable event
    1.  Not tax-free
    2. E.g. if sell property, will have capital gains tax.


Tax Consequences in the Domestic Partnership Act

  1. Almost all tax laws are federal.
  2. ERISA doesn’t apply to Domestic Partners because federal in nature
  3. DRTRA doesn’t apply to DPs.





  1. Federal Government is not a CP entity, so federal benefits aren’t necessarily available in FLC.
  2. Because of Supremacy Clause, Congress must give the state permission to divide federal benefits.
  3. Congress must pass an enabling statute to divide the benefits. If no enabling statutes, court don’t have SMJ.
  4. E.g. Social Security: is a non-entity in FLC even if paid with CP funds!!
  5. Point = Federal Government can tell you IF you can divide a pension and also HOW to divide it.


Boggs v. Boggs

ERISA = federal act that dictates how defined benefit programs are going to be administered uniformly throughout country.

H married to W1. W1 died. H remarries W2. W2 under survivor benefit plan was beneficiary. When H died, W1’s children wanted part of that pension because earned while married to W1 and part of it was CP. Kids sued W2 for pension.

Issue = ERISA says can name beneficiary. W2 was beneficiary. Conflict between State and Federal law.

Holding = Under CP law, children win, but CP doesn’t control. Federal law controls so W2 wins and gets all of pension.


Stenquist Case (again)

Issue was disability pay and retirement pay and whether W got any of it because both were available to choose from. Holding was if have option, and choose disability pay, W, to extent that opting out of longevity, is CP and divisible. This is decision under CA law. But with FEDERAL employees, is NOT GOOD.


Mansell Case – military disability benefits

Holding = congress hasn’t past an enabling statute that allows states to divide military disability. Therefore, states can’t divide federal disability under any circumstances. E.g. this would apply to military disability. H, in this case, can deprive W of disability pension. Can’t divide that asset.


Federal Pensions


Background = prior to 1981 family law attorneys were dividing them (never had right to divide pensions). In the

McCarty Case, went to SC. Held that no enabling statute that gave courts authority to divide these assets. After this, Congress passed an enabling statute (10 USC §1408). Congress decided that could divide the pensions, BUT also said how would divide them:

Two Categories:

1.      Federal Civil Service = states CAN DIVIDE them pursuant to state law like they would any pension. In CA would be the Brown Formula.

2.      Military = Three (3) prong test to divide pension per §1408. Must meet one of the criteria: 

a.       (1) Does military member consent to division? (doesn’t happen often); OR

                                                  i.      If don’t address/ignore service of DISO than by default finds consent.

b.      (2) Is the military member a domicile of state? (usually not); OR

c.       (3) Did the military member commit acts greater than necessary as a result of their military obligation? This is like a long arm statute with the “purposeful availment” test. That is, did military member commit acts greater than necessary while stationed here in CA to make them purposefully availed of the state laws?

                                                  i.      Tucker Case = H was stationed in CA but domiciled in FL. H owned a house in CA. Had a CA driver’s license. H worked as a chaplain in a hospital and has a child who was special and state paid money to him. Seems to meet the “greater than necessary act” requirement.

                                                ii.      Holding = everything he did was connected to military obligation. Did not commit acts greater than military but CONSISTENT with military obligation!

                                              iii.      Point = as a result, in CA almost impossible to divide a military pension.


More Examples – even if bought with CP funds!!!!

  1. Federal life insurance programs
  2. U.S. Savings Bonds – if paid for with CP but in one person’s name, is SP!