Married Womans Presumption Family Code 803

1
Married Womans Presumption (Family Code 803)

• Whenever real or personal property was acquired
  before 1/1/75 by married woman by an instrument
  in writing
• If by her, then SP
• If by W and another, then Ws is SP
• If as H and W, then CP
• Presumption irrebutable with regard to person
  dealing in good faith for valuable consideration
  (i.e. BFP)

2
AshodianFacts to rebut presumption

• Lack of an agreement between H and W to transmute
  CP to SP
• H had no intent to make a gift of SP or CP to
  wife
• W used CP to purchase SP in her name w/ H
  knowledge but he intended no gift
• W used CP to purchase SP in her name w/o H
  knowledge

3
4 ways to hold property

• Joint tenancy
• Tenants in common
• Community Property
• Community Property w/ Survivorship

4
Marriage of Lucas

• House purchased 1968 for 23,300
• 6,351.57 down payment W SP
• 16,948.48 mortgage loan (CP)
• W paid 2,962 SP for improvements
• Time of trial H worth 56,250
• 14,600 mortgage
• 41,650 equity
• CP paid 2,052.32 p, 6,801.14 i, 5,146.20 t

5
Lucas trial court division

• EQUITY 41,650.50
• Refund W improvement ( 2,962)
• CP interest 24.42 ( 9,477.50)
• W SP interest 75.58 ( 29,241)

6
Lucas proper division if some SP
preservedEXAMPLE IN FOOTNOTE 3

• 100,000 home price
• 20,000 SP down
• 80,000 CP mortgage
• Home now worth 175,000
• Mortgage 78,000
• SP interest down of gain
• 20,000 20 of 15,000 35,000
• CP interest reduction mortgage of gain
  2,000 60,000 62,000

7
Lucas proper division if some SP preserved
actual facts

• 23,300 home price
• 6,351.57 down payment W SP
• 16,948.48 mortgage loan (CP)
• Home now worth 56,250
• 14,600 mortgage
• CP paid down 2,050
• GAIN 32,950
• SP 6,351.57 27.25 GAIN
• CP 2,050 72.75 GAIN

8
Anti-LucasPresumption

• For division at dissolution/separation
• Property acquired in joint form (TC, JT, TE or
  CP) during marriage presumed to be CP
• Rebuttable by
• Clear statement in deed or other title document
  that property is SP
• Written agreement that property is SP

9
Anti-LucasReimbursement

• Contribution includes downpayment, improvement,
  reduction of principal
• NOT interest, maintenance, taxes, insurance
• Unless written waiver, upon divorce
• SP reimbursed for contributions
• No interest or adjustment for change in value
• Cannot exceed value of property at division

10
Family Code 2641(a)Community contribution to
education

• Payments made with CP for
• Education
• Training
• Repayment for student loan

11
Right to reimbursement

• Upon dissolution (NOT death)
• Community reimbursed for community contributions
  to education or training of a party that
  substantially enhances the earning capacity of
  that spouse
• Including interest
• Educational loans incurred during marriage are
  assigned to educated spouse separate from
  community debts

12
Limit on reimbursement

• Reimbursement can be reduced or modified if
• Community substantially benefited
• Presumption NO if less than 10 years after degree
• Presumption YES if more than 10 years
• Affects burden of proof
• Offsetting education for other spouse
• Training reduced need for support
• Exclusive remedy, but can affect spousal support

13
Valuation of law practice

• Fixed assets, which we deem to include cash,
  furniture, equipment, supplies and law library
• Other assets including properly aged accounts
  receivable, costs advanced with due regard to
  their collectibility, WIP not completed, and WIP
  not billed
• Goodwill in practice as going concern
• Liabilities of practitioner related to practice