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Characterization & Judicial Power to Divide Marital Property

Characterization & Judicial Power to Divide Marital Property

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Published by hfirestone
Divorce and division of marital property by Michael Busby. The community property system recognizes the spouses' joint ownership in assets acquired during marriage.
Divorce and division of marital property by Michael Busby. The community property system recognizes the spouses' joint ownership in assets acquired during marriage.

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Categories:Types, Business/Law
Published by: hfirestone on Mar 17, 2009
Copyright:Attribution Non-commercial

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10/15/2010

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TABLE OF CONTENTSTABLE OF CONTENTS..............................................iI.CHARACTERIZATION AND THE JUDICIAL POWER TO DIVIDE MARITALPROPERTY..................................................1A. Marital Estates And The Division Of Marital Property.......11.Key terms defined.........................................12.Jurisdiction of the court.................................2B. Divorce And Property Division..............................31.Division of the marital estate............................42. Inception of title, premarital, and post marital contracts..4II.OLD REIMBURSEMENT LAW PRIOR TO EQUITABLE INTEREST STATUTEAND 2001 AMENDMENTS.......................................5A.Judicial Doctrine of Equitable Right to Reimbursement.....51. Key terms defined...........................................62.Discontentment with the doctrine..........................6B.Examples Of Fact Situations Where Reimbursement Was AllowedUnder The Judicial Doctrine Of Equitable Reimbursement....71.Living expenses...........................................72.Child support.............................................83.Payments of debts, taxes, interest, or insurance..........94.Reimbursement involving improvements to real property....10C.Prohibition Against Divestiture Of Separate Property.....101.Prohibition against divesture of real property...........11
 
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2.The Court extends the prohibition of divestiture topersonal property........................................13III. STATUTORY CHANGES 1999 AND 2001.........................14A. Nature of the Problem......................................141.Specific changes.........................................152.Method of measurement for economic contribution..........173.No ownership interest created............................184.Not limited to real property.............................195. Method of enforcing the claim for economic contribution isthe Equitable Lien.......................................196.Offsetting claims........................................227. History of the offset claim...............................22C. Summary and Conclusion....................................23Endnotes......................................................27
 
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I.CHARACTERIZATION AND THE JUDICIAL POWER TO DIVIDE MARITALPROPERTY
A.Marital Estates And The Division Of Marital Property 
The community property system recognizes the spouses' jointownership in assets acquired during marriage. This conceptreflects the societal view of marriage as a partnership to whicheach spouse makes different but equally valuable contributions.A shared mistaken belief among laypersons and attorneys who donot practice family law, is that at the time of divorce,annulment or upon the death of one of the spouses, the courtwill equally divide marital property that the spouses held incommon during the marriage.
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This belief arises from the factthat, during the marital relationship, the law regard’s thespouses as equal partners in all the property that was acquiredthrough their talents and labors during the marriage.
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1.Key terms definedAccordingly, claims for economic contribution and/orreimbursement arise at the time spouses decide to end theirmarriage or upon the death of one of the spouses. Before thecourt can hear a claim for either reimbursement or economiccontribution, the marital property must be characterized.
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Thereare three estates that the court will look in making thedivision of the community, the community estate and the separate

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