CALIFORNIA COMMUNITY PROPERTY — BAR ONE-SHEET (ELEMENTS & MNEMONICS)
Lean California issue-spotting checklist — elements and mnemonics only. Pair with the full California Community Property Master Outline for depth, then practice timed essays at BarExamNextGen.
KEY PRINCIPLE #1 — CHARACTERIZATION FRAMEWORK (ALWAYS START HERE)
For EVERY asset run the same chain: Source → Presumption → Actions of parties → Tracing → Distribution.
- CP presumption — Fam. Code §760: all property acquired during marriage while domiciled in CA is CP.
- SP — Fam. Code §770: owned before marriage; acquired by gift, bequest, devise, or descent; rents/issues/profits of SP.
- §771: earnings/accumulations while living separate and apart are SP (date of separation = complete + final break, In re Marriage of Davis; codified §70).
- CA is a community property + equal management state; each spouse owes the other a fiduciary duty (§721).
KEY PRINCIPLE #2 — TRANSMUTATION (POST-1985)
- §852: transmutation requires a writing, express declaration, made/joined/consented by the adversely affected spouse.
- MacDonald rule: writing must expressly state ownership is being changed/given up; "deposit to your account" is NOT enough.
- Exception: §852(c) tangible gifts of a personal nature, not substantial in value, need no writing.
- Oral transmutations valid only if before Jan 1, 1985.
KEY PRINCIPLE #3 — TRACING (REBUTTING THE CP PRESUMPTION)
Commingled funds: SP proponent bears burden to trace.
- Exhaustion (See method): community funds were exhausted by community expenses when the asset was bought, so it must be SP.
- Direct tracing (Hicks): show SP funds available + intent to use SP at time of purchase.
- Family-expense presumption: expenses paid first from CP; SP used for living expenses is presumed a gift, no reimbursement.
KEY PRINCIPLE #4 — BUSINESS / LABOR APPORTIONMENT (SP BIZ THAT GROWS)
SP business growing during marriage: allocate growth between SP capital and CP labor. Mnemonic: "Personal = Pereira, Vendor = Van Camp."
- Pereira (spouse's skill/effort drove growth): SP = capital + fair return (≈10%/yr simple); rest is CP.
- Van Camp (business/market drove growth): value CP labor at market salary, subtract family expenses paid; remainder SP.
KEY PRINCIPLE #5 — PENSIONS & EMPLOYMENT BENEFITS
- Time rule: CP share = years married during employment ÷ total years employed (vesting irrelevant; Brown).
- Disability pay / severance / worker's comp = characterized by what it replaces (lost CP earnings vs post-separation earnings).
- Stock options: time-rule apportion by purpose (reward past service vs incentivize future).
- Education/degree: not property; community may get §2641 reimbursement for education loans/costs that enhanced earning capacity.
KEY PRINCIPLE #6 — REIMBURSEMENT & SPECIAL TITLE RULES
- §2640: at divorce, spouse who contributed SP to acquire/improve CP gets reimbursed for DIP (Down payment, Improvements, Principal) — no interest, no appreciation; can't exceed net value.
- §2581 (joint-title presumption): property in joint form at divorce is presumed CP; rebut only by written agreement or title statement.
- Moore/Marsden: SP house, CP pays mortgage — CP gets pro-rata share of principal reduction + proportional appreciation.
- SP improving other spouse's SP: reimbursement or gift (split authority).
KEY PRINCIPLE #7 — DISTRIBUTION AT DIVORCE
- §2550: court must divide CP equally (in-kind or by asset, not necessarily 50/50 of each item).
- Exceptions to equal: misappropriation, education debt, personal-injury awards (§2603 — to injured spouse), small community estate, tort liability.
- §1101: breach of fiduciary duty (e.g., undisclosed transfer) → 50% or, if malice/fraud/oppression, 100% of asset to other spouse.
KEY PRINCIPLE #8 — QUASI-CP, PUTATIVE SPOUSE, DEATH
- Quasi-CP: property acquired elsewhere that WOULD have been CP if acquired in CA; treated as CP at divorce/death.
- Putative spouse: good-faith belief in valid marriage → property = "quasi-marital property," divided like CP.
- Death: decedent may will away ½ of CP + all SP; surviving spouse keeps own ½ CP. No will → spouse takes all CP (Prob. §6401) + intestate share of SP.
KEY PRINCIPLE #9 — DEBTS & CREDITORS
- CP liable for debts incurred by either spouse before/during marriage (§910).
- SP of non-debtor spouse NOT liable for the other's premarital debts (§913); but CP earnings of non-debtor reachable unless held separately.
- Necessaries: spouses liable for the other's necessaries of life (§914).
KEY PRINCIPLE #10 — MANAGEMENT, GIFTS & SPECIAL ASSETS
- §1100: either spouse may manage/control CP, BUT written consent needed to gift CP or sell/encumber CP personal property used as the home/clothing.
- §1102: both spouses must join to convey/encumber CP real property; unilateral transfer to a BFP voidable, set aside within statutory period.
- ADDITIONAL HIGH-YIELD POINTS
Married Woman’s Special Presumption (pre-1975). Property acquired by a married woman in writing before Jan. 1, 1975 is presumed her separate property; if title taken in both spouses’ names, presumed half SP / half CP. Watch only for old facts. A rebuttable title presumption that overrides the general CP presumption.
Business Goodwill. Goodwill of a professional practice or business built during marriage IS a divisible community asset; value it at divorce (capitalized-excess-earnings or market-sale method). Distinguish from a degree, which is NOT property.
Professional Degree/License — No Asset, Only Reimbursement. An education or license is never divisible property; the community is limited to §2641 reimbursement (with interest) for community-funded education costs that substantially enhanced earning capacity. Rebut if community already benefited 10+ years. Degree ≠ property; reimbursement only.
Personal-Injury Recovery. A PI cause of action arising during marriage is CP, BUT at divorce it is assigned wholly to the injured spouse (§2603) unless interests of justice require otherwise (min. 50%). Recovery for an injury while living separate is SP; recovery against the other spouse is the injured spouse’s SP. CP in form, but awarded to the injured spouse on divorce.
Stock Options & Restricted Stock. Apply a time-rule fraction tailored to the option’s purpose — Hug (rewards past service: from hire to grant) vs. Nelson (incentivizes future work: from grant to vesting). Pick the fraction by why the option was granted.
Watts & Epstein Charges (post-separation). A spouse using a CP asset (e.g., the home) after separation owes the community its reasonable rental value (Watts charge); a spouse paying a community debt with SP post-separation gets reimbursed (Epstein credit). Watts = community is owed; Epstein = spouse is owed.
Life Insurance. Term policies are characterized by the source of the last premium (the term just paid for). Whole-life is apportioned CP/SP by proportion of premiums paid with each. Term = last premium; whole-life = pro rata.
Credit-Acquired Property. Property bought on credit during marriage is presumed CP; characterize loan proceeds by the lender’s primary intent — if the lender relied on the borrower’s SP, the borrowed funds (and asset) are SP. “Intent of the lender” test.
Premarital (Marital) Agreements. Governed by CA’s Uniform Premarital Agreement Act; must be written & signed. Enforced unless (a) not signed voluntarily — presumed involuntary absent 7-day review period, independent counsel (or waiver after advisement), and full disclosure — or (b) unconscionable when made plus no disclosure. Spousal-support waivers need independent counsel and aren’t unconscionable at enforcement. “7 days + counsel + disclosure.”
Registered Domestic Partners. CA community-property rules apply equally to registered domestic partners as of registration. Same CP framework, different start date.
Federal Preemption. Certain federal benefits override CA characterization — e.g., Social Security, military disability waivers, U.S. savings bonds, and ERISA-governed plans (QDRO needed). Federal law trumps the CP presumption.
Anti-Lucas Legislation — Why §2581/§2640 Exist. Lucas held SP used to acquire joint-title property was a gift; the Legislature reversed this for divorce (joint title presumed CP under §2581, but SP contributor gets §2640 reimbursement). At death, the old Lucas gift presumption still controls.
Fiduciary-Duty Remedies (§1101). A spouse who breaches the §721 fiduciary duty (e.g., concealment, unauthorized gift of CP) may owe 50% of the asset, or 100% plus attorney’s fees if the breach involved fraud, malice, or oppression. Grossly negligent vs. fraudulent governs the remedy.
Spousal Gift of CP Without Consent. A unilateral gift of CP by one spouse is voidable; during marriage the non-consenting spouse may void it entirely, and on death/divorce may recover their one-half. No consent = the gift can be unwound.
No Elective Share at Death. Because each spouse already owns one-half of the CP outright, CA has NO surviving-spouse elective/forced share against the decedent’s SP (unlike common-law states). The decedent may freely will all SP and his/her half of CP. Ownership, not election, protects the survivor.
★ ONE-LINE ATTACK ORDER
Characterize each asset (CP/SP presumption → source & tracing → transmutation §852) → special rules (Pereira/Van Camp, pension time rule, reimbursements §2640/§2581) → management & fiduciary duty (§1100/§1101) → debts/creditors → DIVISION (equal §2550) or DEATH (each devises ½).