1. Class XIX – Marital Property Prof. David Glazier Oct 31, 2006 PropertyProperty

2. Today’s Class Significance for you English common law rules American adaptation/Married Women’s Prop Act Death and Divorce under common law Community Property Overview Death and Divorce under community property Special Rules

3. Significance for You Professional Responsibility Real Property Remedies Torts Trusts Wills and Succession Civil Procedure Community Property Constitutional Law Contracts Corporations Criminal Law/Procedure Evidence California Bar Exam Subjects:

4. Significance for You Professional Responsibility Real Property Remedies Torts Trusts Wills and Succession Civil Procedure Community Property Constitutional Law Contracts Corporations Criminal Law/Procedure Evidence California Bar Exam Subjects: - CP not on MBE outline - I will not test

5. English Common Law Rules Wife lost status as legal person during marriage - became a feme covert - owed protection for household services Husband controlled all family property - Owned property acquired during marriage - Controlled any real property owned by wife -- His creditors can reach wife’s property

6. English Common Law Rules Curtesy was husband’s life estate in wife’s property during marriage - controlled all property during wife’s life - if children born became estate for his life Effectively: To H for the life of W, but if H and W have kids, to H for life

7. English Common Law Rules Dower provided some protection to widows - Given life estate in 1/3 of real property - Intent to let her live out life in family home -- sufficient resources for her support - Eldest son generally inherited property

8. Married Women’s Property Acts Gave married women control over own property - right to any outside earnings - protected her property from husband’s debts Adopted by all U.S. states between 1839-1900 - Curtsey abolished in wake of MWPAs - Dower typically extended to widowers - Some impact on tenancy of the entirety

9. Sawada v. Endo (Hawaii 1977) Mr. Endo hit the Sawada sisters and they sued - Endo had no liability insurance Endos owned home as tenants in the entirety - Conveyed property to sons after suit filed -- no consideration received -- Elder Endos continued to reside there - Mrs. Endo died 10 days after verdict

10. Sawada v. Endo Decision Hawaii adopted majority TOE rule - Interest not reachable by individual creditors - Spouses must convey or mortgage together - Each seized of the whole estate Hawaii public policy favors family solidarity - Protection of fee simple ownership vital Endos’ conveyance not fraudulent because his creditor’s couldn’t reach

11. Divorce Law Fault based - New York No-fault system - California - pioneered in 1970 Mixed system - Virginia - e.g., bars alimony to adulterous spouse

12. Divorce in Common Law States Traditionally property divided by title - Property owned before marriage kept by holder - Tenancy by entirety severed into tenancy in common - Property acquired during marriage but separately titled went to named spouse -- Income typically awarded to earning spouse Husband historically favored in property division - Innocent wife typically awarded long-term alimony

13. Divorce in Common Law States Property rules have evolved with divorce laws Courts now make “equitable distribution” - Rules vary by state, may include: -- all property -- all property acquired during marriage -- all property acquired with earned income Trend toward equality in distribution - Separate v. marital property

14. Death in Common Law States Dower and curtesy largely abolished Spouse protection provided by “elective share” - Surviving spouse can take per will, or - Choose to take elective share (1/3 to 1/2) - Unlike dower, share is outright ownership Precludes disinheritance by token bequest - Most states protect against pretermission

15. Community Property Rules Developed in continental Europe - came to U.S. through French/Spanish influence Eight original community property states - AZ, CA, ID, LA, NV, NM, TX, and WA Two recent additions by statute - AK has elective community property - WI has equivalent “marital property”

16. Community Property Basic Concept Separate property belongs to owning spouse: - Property acquired before marriage - Gifts, devises, inheritances during marriage - Income directly attributable to separate property -- Except ID, LA, TX and WI Community property belongs equally to both: - All income earned during marriage by either - All property purchased with marital income

17. Divorce Under Community Property Separate property is kept by owner Community property is divided equally

18. Death Under Community Property Separate property is devised or inherited Surviving spouse gets 1/2 community property - Remaining 1/2 is devised or inherited - No automatic survivorship like JT or TOE -- Now option to create CP w/survivorship

19. Community Property Complications Moves from non-community property states - “quasi-community property” Disputes over property classification - Funds, Intentions, Title Pre-marital agreements Transmutation of property Judicial/statutory evolution Domestic partnerships

20. What about law degrees? General rule is “too personal” to be community property - e.g., Mahoney v. Mahoney (N.J. 1982) -- not alienable, value too speculative -- can be offset via “reimbursement alimony” - NY considers enhanced earning potential property California holds degree not community property - “Reimbursement of community contributions” - Debt goes with diploma

21. Looking Ahead Next Class – Thur 11/02 - Introduction to Leasehold Estates -- Text on types of tenancy pp. 363-65 -- Garner v. Gerrish pp. 365-67 --- can skip problems on 367-68 -- Crechale & Polles v. Smith pp. 369-71 -- Notes 1 & 2 on pp. 371-73

22. Questions?