Community Property and Trusts and Estates Summer 2018

Class #4 Notes

1. Type of relationship and community property relationship

Issue #1: What kind of relationship do X and Y have?

Issue #2: What kind of property do X and Y hold?
Issue #3: Upon end of the relationship, how is property divided?

2. Issue #1: What kind of relationship do X and Y have?

a. Lawful spouses of opposite sex

i. The rule is that, to be validly married in California, they must meet the
following requirements:
A. marry in California
B. consent of the parties
C. license
D. registration (recordation)
E. solemnization (witnessed ceremony)
ii. The rule is that, if a couple marries outside California and then move
to California, they must meet the marriage requirements of the
foreign state to be validly married in California.

b. Lawful spouses of same sex

Currently:
i. same sex marriages are valid if licensed and performed in California
between 6/16/08-11/5/08 and after 6/28/13
ii. same sex marriages contracted outside of California (if valid by the laws of
the jurisdiction in which marriage was contracted) are valid in California

c. Putative spouses (opposite sex putative spouses, no same sex putative spouses)

The rule is that a putative spouse:

i. is an innocent participant who has duly solemnized a matrimonial union

that is void because of some legal infirmity,

ii. has a good faith belief that the marriage is valid and:

A. if there was a ceremony, the belief is held on subjective basis OR

B. if there was no ceremony, the belief must be objectively reasonable

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d. Registered domestic partners [(1) opposite sex domestic partners as long as one
meets certain Social Security requirements or (2) same sex domestic partners]

The rule is two persons are registered domestic partners when:

i. both file with the Secretary of State a Declaration of

Domestic Partnership
ii. both have a common residence
iii. neither is married to or in a domestic partnership with someone else
iv. both are not related by blood as prohibited for marriage under state law
v. both are at least age 18
vi. either:
A. both are of the same sex
[B. one or both meet certain Social Security requirements]
vii. both are capable of consenting to the domestic partnership

e. Unmarried cohabitants (opposite sex or same sex cohabitants who are not married or
registered domestic partners)

The rule is that individuals are unmarried cohabitants (whether opposite or same sex)
when:

i. both have a common residence

ii. neither is married to or in a domestic partnership with anyone else
iii. both are age 18

3. Issue #2: What kind of property do X and Y hold?

a. Lawful spouses (opposite sex) hold community property and separate property.
Community property is property acquired by a married person during the marriage
while domiciled in California, and separate property is property acquired before the
marriage or during the marriage from gift or inheritance.

b. Lawful spouses (same sex) hold community property and separate property.
[just like lawful spouses (opposite sex)]

c. Putative spouses hold quasi-marital property and property individually.

Quasi-marital property is property acquired during the union that would have been
community property if the marriage had not been void.

d. Registered domestic partners hold community property and separate property

[just like lawful spouses (opposite sex)]

e. Unmarried cohabitants hold property individually or jointly but no CP, SP, or QMP

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4. Issue #3: Upon end of the relationship, how is property divided?

a. Lawful spouses (opposite sex): The rule is that, upon divorce, community
property is divided into equal shares for husband and wife, and separate property
remains with the separate property owner.

b. Lawful spouses (same sex): The rule is that, upon divorce, community
property is divided into equal shares for the spouses, and separate property remains
with the separate property owner.

c. Putative spouses: The rule is that, upon end of the union, quasi-marital
property is divided into equal shares for each putative spouse, and property held
individually remains with that property owner.

d. Registered domestic partners: The rule is that, upon termination of the

domestic partnership, community property is divided into equal shares for the
registered domestic partners, and separate property remains with the separate
property owner.

e. Unmarried cohabitants: The rule is that termination of the cohabitation

does not cause any division of property, such that individually-held property remains
with that property owner, and jointly-held property remains in joint title.

5. Policy behind differing treatment of marital/partnered individuals vs. non-marital/non-

partnered individuals

a. What's the difference between i. and ii. below:

i. lawful spouses (opposite sex), putative spouses, lawful spouses (same sex)
and registered domestic partners--who have CP or QMP

AND

ii. unmarried cohabitants--who don't have CP or QMP

b. Married people (or married-like people such as putative spouses or registered

domestic partners) are seen as being in a partnership, as being one unit, as having a
legal relationship between them.

c. As we'll discuss later in the course, the “marriage as partnership” idea means
that a husband and a wife (or partners) owe each other certain legal duties.
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 d. Consequently, the “marriage as partnership” idea also means that the legal
duties between a husband and a wife (or partners) do not exist between non-married
people or non-partnered people, who are legal strangers to each other.

e. Although non-married or non-partnered people don't owe each other legal

duties, they may have contractual duties to each other, as seen in the Lee Marvin
case, discussed next.

6. Marvin v. Marvin

We won't thoroughly analyze the Marvin case, which addresses many issues outside of CP
land (such as palimony, which is alimony for pals who are not spouses).

Instead, we'll focus on how the court viewed Michelle and Lee Marvin as unmarried
cohabitants who did not owe marital duties to each other (because they weren't married) but who
owed to each other only contractual duties, if those existed at all.

Michelle Triola and Lee Marvin lived together for 7 years without marrying. All property
acquired during the 7 years was acquired in Lee Marvin's name. Michelle legally changed her last
name to Marvin, but, as stated above, Michelle and Lee never married.

At trial, Michelle argued:

1. that she and Lee "entered into an oral agreement" that, while "the parties
lived together [,] they would combine their efforts and earnings and would share
equally any and all property accumulated as a result of their efforts whether
individual or combined"

Question: Is Michelle arguing that there was a marriage? Nol.

Question: Is Michelle arguing that she and Lee are lawful spouses (opposite sex)?
No.

Question: Is Michelle arguing that she and Lee are putative spouses? No.

Question: Is Michelle arguing that she and Lee are registered domestic partners?
No.

2. that they agreed to "hold themselves out to the general public as husband and wife"

Question: Michelle is arguing for a common law marriage. What's the rule? CA
doesn’t recognize CL marriages.

Question: Even if Michelle convinced the court that she and Marvin had a
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 California common law marriage, what's the result? CA doesn’t recognize a CA
CL Marriage – would have had to taken him to a CL state.

3. that she would "further render her services as a companion, homemaker,

housekeeper and cook" to Lee

Question: Is Michelle arguing that there was a marriage? No.

Question: Is Michelle arguing that she and Lee are lawful spouses (opposite sex)/
putative spouses/registered domestic partners? No.

7. Marvin v. Marvin

There were several trial and appellate court opinions, and one California Supreme Court
opinion. The relevant holdings summarized from those courts are:

1. As to whether Michelle and Lee had an oral contract, the trial court found no
contract, express or implied, between the two of them.

2. On appeal, the California Supreme Court held that courts should enforce
express contracts between unmarried cohabitants except to the extent that the
contract is explicitly founded on the consideration of sexual services (i.e.,
prostitution).

Note: The California Supreme Court knew that the trial court found no
contract, express or implied, between Michelle and Lee, so what did it hold in the
alternative?--see the next paragraph.

3. The California Supreme Court held that courts finding no express contracts
between unmarried cohabitants should instead "inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied contract,
agreement or partnership or joint venture, or some other tacit understanding
between the parties [regarding property transfers]" and may apply equitable
remedies. (SC is bending backwards to help Michelle – compensate her which is in
line with CP theories).

Note: On remand, the trial court found that, between Michelle and Lee,
there was no express and no implied agreement about property transfers between the
two, but the trial court awarded on "equitable" grounds to Michelle a "palimony"-
like support award of $104,000.

On appeal, Michelle lost her $104,000 award because the court found she
had already benefited from the relationship and didn't deserve additional financial
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 support. After all of the court opinions were issued, Michelle received zero from
Lee.

8. Application of law to examples

Issue #1: What kind of relationship do X and Y have?

Issue #2: What kind of property do X and Y hold?
Issue #3: Upon end of the relationship, how is property divided?

9. Lawful spouses (opposite sex)

Maria Shriver Could Win Over $100 Million In Arnold Schwarzenegger

Divorce, Says Top Attorney!
Pre-nup or not, Maria might take Arnold to the cleaners in what may turn out to
be one of the costliest celebrity divorces in history!
Lucky for Maria Shriver, what’s Arnold Schwarzenegger‘s is also hers! HollywoodLife.com
spoke with top family divorce attorney Vikki Ziegler, who reveals that since their home state of
California is a community property state, Maria would be owed a lot in a divorce. “She stands to
make over 100 million based on their estimated fortune,” Vikki explains. [from several sources]

b. What kind of relationship do Maria and Arnold have? Lawful spouse – opposite sex

c. What kind of property do Maria and Arnold hold? CP and SP

i. What about the sentence: “what’s Arnold Schwarzenegger’s is also hers!”

Wrong – she already owns it.

ii. What about the sentence: “She stands to make over 100 million based on
their estimated fortune”?

A. “Stands to make”? Not accurate

B. “estimated fortune”?

I. acquired before marriage? Absent prenup and

transmutation – its his SP. She won’t get anything.

II. acquired during marriage? CP – she already has part.

10. Lawful spouses (same sex)

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Ellen DeGeneres and Portia de Rossi have become lawfully wedded wives. They were married
on August 16, 2008.
Capitalizing on the recent switcheroo in California law, the longtime loves swapped vows Saturday
in front of family and friends at their Beverly Hills estate, according to People. [from several
sources]

a. Remember, same sex marriages are valid if licensed and performed in California
between 6/16/08-11/5/08
b. What kind of relationship do Ellen and Portia have? Lawful spouses – same sex.

c. What kind of property do Ellen and Portia hold? CP and SP.

d. Upon end of the relationship, how is property divided? CP – split halfsies,
SP – remains with owner.

Melissa Etheridge Gets Nasty In Divorce!

Shame On Her
Melissa Etheridge and Tammy Lynn Michaels had a commitment ceremony in Malibu, California,
on September 20, 2003. After 9 years of being together, Melissa Etheridge filed legal documents
to formally end her domestic partnership with Tammy Lynn Michaels on Friday.
In a Petition for Dissolution of Domestic Partnership, Etheridge cites "irreconcilable differences"
and has requested joint custody of their 3-year-old twins. [from several sources]
a. Were Melissa Etheridge and Tammy Lynn Michaels married under California law?
Remember, same sex marriages are valid if licensed and performed in California
between 6/16/08-11/5/08. No -
b. What kind of relationship do Melissa and Tammy Lynn have? Domestic
Partnership

c. What kind of property do Melissa and Tammy Lynn have? SP and CP

d. Upon end of the relationship, how is property divided? CP – split and SP remains
with owner

10. Britney Spears and Kevin Federline's "Agreement re September 18, 2004 Wedding
Ceremony"

They held a wedding ceremony on September 18, 2004, but they were not legally married

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until October 6 because of a delay in finalizing their prenuptial agreement.

So, to formalize their legal obligations effective as of their “wedding ceremony” on

September 18, 2004, Britney and Kevin (it was reported) entered into the following agreement.

See pdf file on TWEN entitled Spears-Federline Agreement