Emma. wrote: Torts Illustrated wrote: Torts Illustrated wrote:
Fresh Prince wrote:I thought property taken under one persons name alone meant that it was his property on divorce, and that you use tracing to make sure it's SP. doesn't become CP unless separate agreement or explicit in deed, and spouse entitled to DIP?
I didn't do this essay, so I don't know if this relevant, but there's one exception to this: If the property is titled in the name of just one spouse, but that spouse is the person who acquired the property (and so is the spouse who got to decide whose name(s) went on the title), then the title is regarded as self-serving and the special presumption of title doesn't apply.
Never mind: I just realized your fact pattern was about divorce (not death), so the special presumption of title doesn't apply anyway. Sorry.
WTF is this "special presumption of title?" I've never heard of it. 2 line explanation plz???
As I understand it, there are 5 presumptions that may apply in a community property question:
Two general presumptions, which can be rebutted by a preponderance of the evidence:
1. The general community property presumption: property acquired during marriage, if not gift/inheritance, is community property.
2. The general separate property presumption: property acquired before marriage or after death/divorce/separate and apart is separate property.
Three special presumptions, which can be rebutted only by clear and convincing evidence:
1. The special title presumption
: property is presumed to belong to the party or parties on the title. (So property where both spouses are on the title is community property; property where only one spouse is on the title is that spouse's separate property.) This applies only at death.
2. The special community property presumption: jointly held property is community property. This applies only at divorce.
3. The married woman's special presumption: Property acquired before 1975, titled in the woman's name without her husband, is presumed her separate property.