July 2015 California Bar Exam Forum

[Tiago Splitter]

Yeah the reimbursement only applies when:

1) CP used for child support from previous marriage (CP reimbursed)
2) SP applied to necessities of other spouse when CP/other spouse's SP was available
3) Some tort liability if the normal order of debt satisfaction was not followed

[soj]

.

[robinhoodOO]

I thought child support payments to a prior spouse were SP and treated as SP at divorce, like educational loans (notwithstanding the reciprocal or 10-year exceptions). Community property isn't my best subject, though.

Looks like you're right. Per Barbri, debts incurred before marriage are separate debts and are given back to the spouse who incurred them when the divorce happens. So the judge first gives back everyone their separate debts, then splits the rest between the two.

What got me is that once the couple is married the guy's child support becomes a community debt. But then on divorce they give it all back to him.

Oh it gets even better, the non-obligor spouse has a 3 year statute of limitations for reimbursement when there is sufficient non-exempt SP (FC 920(c)(1). Very easy to blow the SOL during marriage and get screwed at divorce. No model answers ever address this, but it's in BarBri big outline.

I tried to go thru the big outline for community property and also for wills/trusts, but holy shit it's so long. I felt like I was wasting my time learning a lot of irrelevant material, but I never took those classes in law school so maybe I should just grind it out.

What you get from the big outline in community property is details that don't make a huge difference in a passing answer. I think Prof. Bloomberg from UCLA contributed for the most part for the BarBri CP outline. There are Fam Code details that broke BK bar graders wouldn't know when grading your exam, example a child born after the marriage ended is presumed "a child of the marriage" if born within 300 days of the judgment of dissolution. So that one last go before the divorce can create that presumption without having a paternity test. Lean Sheets really does a decent job making it simple, except it should emphasize Lucus/Anti Lucas is only applicable to titled property.

I'm not sure how you meant to restrict the "Anti-Lucas Statute" with the title qualifier, but I'm pretty sure a 2640 reimbursement claim applies to any/all CP acquired with SP at dissolution.

[robinhoodOO]

Yeah the reimbursement only applies when:

1) CP used for child support from previous marriage (CP reimbursed)
2) SP applied to necessities of other spouse when CP/other spouse's SP was available
3) Some tort liability if the normal order of debt satisfaction was not followed

maybe i'm missing context in this convo, but what about down/improvement/principal, education (sometimes), unilateral transfers of CP?

Yup; I'm confused by this statement too...

[Tiago Splitter]

Yeah the reimbursement only applies when:

1) CP used for child support from previous marriage (CP reimbursed)
2) SP applied to necessities of other spouse when CP/other spouse's SP was available
3) Some tort liability if the normal order of debt satisfaction was not followed

maybe i'm missing context in this convo, but what about down/improvement/principal, education (sometimes), unilateral transfers of CP?

Yup; I'm confused by this statement too...

My bad. Those are the statutory reimbursement rules.

The others are:

1. Unauthorized gifts
2. Use CP to improve own SP
3. Education expenses
4. DIP (down payment, improvements, principal) contributions from one SP to CP
5. SP to other spouse's separate estate without transmutation

[SpAcEmAn SpLiFF]

Am I correct that quasi-community property may be unilaterally gifted during the marriage? Like if I got married to a ho in Colorado and we moved to California, and I was sensing an impending divorce, could I gift our old house in Colorado to my brother before we end the economic community?

[redblueyellow]

I thought child support payments to a prior spouse were SP and treated as SP at divorce, like educational loans (notwithstanding the reciprocal or 10-year exceptions). Community property isn't my best subject, though.

Looks like you're right. Per Barbri, debts incurred before marriage are separate debts and are given back to the spouse who incurred them when the divorce happens. So the judge first gives back everyone their separate debts, then splits the rest between the two.

What got me is that once the couple is married the guy's child support becomes a community debt. But then on divorce they give it all back to him.

Oh it gets even better, the non-obligor spouse has a 3 year statute of limitations for reimbursement when there is sufficient non-exempt SP (FC 920(c)(1). Very easy to blow the SOL during marriage and get screwed at divorce. No model answers ever address this, but it's in BarBri big outline.

I tried to go thru the big outline for community property and also for wills/trusts, but holy shit it's so long. I felt like I was wasting my time learning a lot of irrelevant material, but I never took those classes in law school so maybe I should just grind it out.

What you get from the big outline in community property is details that don't make a huge difference in a passing answer. I think Prof. Bloomberg from UCLA contributed for the most part for the BarBri CP outline. There are Fam Code details that broke BK bar graders wouldn't know when grading your exam, example a child born after the marriage ended is presumed "a child of the marriage" if born within 300 days of the judgment of dissolution. So that one last go before the divorce can create that presumption without having a paternity test. Lean Sheets really does a decent job making it simple, except it should emphasize Lucus/Anti Lucas is only applicable to titled property.

I'm not sure how you meant to restrict the "Anti-Lucas Statute" with the title qualifier, but I'm pretty sure a 2640 reimbursement claim applies to any/all CP acquired with SP at dissolution.

The outlines and stuff I have also state that Lucas and Anti-Lucas is in reference to joint titled property (except in the case where SP was used prior to 1987 and title solely in W's name, otherwise joint titled).

Now I'm confused.

[BuenAbogado]

Am I correct that quasi-community property may be unilaterally gifted during the marriage? Like if I got married to a ho in Colorado and we moved to California, and I was sensing an impending divorce, could I gift our old house in Colorado to my brother before we end the economic community?

Yeah, if CO law allows that. In CA, it's only quasi at divorce, but you shouldn't treat a ho like housewife.

BTW, Kobe, is that you?

[BuenAbogado]

I thought child support payments to a prior spouse were SP and treated as SP at divorce, like educational loans (notwithstanding the reciprocal or 10-year exceptions). Community property isn't my best subject, though.

Looks like you're right. Per Barbri, debts incurred before marriage are separate debts and are given back to the spouse who incurred them when the divorce happens. So the judge first gives back everyone their separate debts, then splits the rest between the two.

What got me is that once the couple is married the guy's child support becomes a community debt. But then on divorce they give it all back to him.

Oh it gets even better, the non-obligor spouse has a 3 year statute of limitations for reimbursement when there is sufficient non-exempt SP (FC 920(c)(1). Very easy to blow the SOL during marriage and get screwed at divorce. No model answers ever address this, but it's in BarBri big outline.

I tried to go thru the big outline for community property and also for wills/trusts, but holy shit it's so long. I felt like I was wasting my time learning a lot of irrelevant material, but I never took those classes in law school so maybe I should just grind it out.

What you get from the big outline in community property is details that don't make a huge difference in a passing answer. I think Prof. Bloomberg from UCLA contributed for the most part for the BarBri CP outline. There are Fam Code details that broke BK bar graders wouldn't know when grading your exam, example a child born after the marriage ended is presumed "a child of the marriage" if born within 300 days of the judgment of dissolution. So that one last go before the divorce can create that presumption without having a paternity test. Lean Sheets really does a decent job making it simple, except it should emphasize Lucus/Anti Lucas is only applicable to titled property.

I'm not sure how you meant to restrict the "Anti-Lucas Statute" with the title qualifier, but I'm pretty sure a 2640 reimbursement claim applies to any/all CP acquired with SP at dissolution.

The outlines and stuff I have also state that Lucas and Anti-Lucas is in reference to joint titled property (except in the case where SP was used prior to 1987 and title solely in W's name, otherwise joint titled).

Now I'm confused.

yeah there is some irrelevant distinction where between I believe 85 and 87, it had to be titled as "joint tenants" and post 87 it applies to any property that you jointly own. At divorce you get back your down payment, improvement, or principal, BUT NO INTEREST ROBIN HOOD!, and at death it's presumed a gift.

[Pleasye]

Does the PT library and file all come in one booklet?

[SpAcEmAn SpLiFF]

Am I correct that quasi-community property may be unilaterally gifted during the marriage? Like if I got married to a ho in Colorado and we moved to California, and I was sensing an impending divorce, could I gift our old house in Colorado to my brother before we end the economic community?

Yeah, if CO law allows that. In CA, it's only quasi at divorce, but you shouldn't treat a ho like housewife.

BTW, Kobe, is that you?

Thanks. She wasn't with me shootin in the gym

[BuenAbogado]

Guys this question is serious. Does the court have quasi-in rem jurisdiction over quasi marital property that is commingled with quasi community property for a suit brought under a quasi-contract theory?

[gaagoots]

.

[gaagoots]

.

[redblueyellow]

Alright, late night confusion abound.

Outline says for FRE Character Evidence Criminal Cases (although, I guess this applies elsewhere as well).

CE of D:

P cannot first offer CE of D. Check.
D can offer CE to prove or disprove conduct. Check - "opening the door" as to their own CE.
P can rebut pertinent character trait of D. Check.
On direct: only Reputation and Opinion. Check.
On cross: Reputation, Opinion, and Specific Acts, but no Extrinsic Evidence.

So where the outline says "on direct" and "on cross," which parties are doing the asking? I am going to assume that it's a prosecutor examining his own witness, and then the defense attorney cross-examining the prosecutor's witness? And the reverse too--the defense attorney will be directly examining his own witness, and then the prosecutor will cross-ex the defense witness?

On that notion, what is the difference in specific acts and extrinsic evidence?

If CE is cannot be used to prove conduct in conformity therewith, at least save for the sexual assault/child molestation exceptions, what's the actual difference between specific acts and extrinsic evidence? If you can't prove a specific act via extrinsic evidence, then the only literal thing that specific acts are good is impeachment of the witness, no?

What am I missing here?

EDIT:

This is the example I have in my head.

Defense Attorney on direct: What is your opinion of the [defendant]?
Defense Attorney on direct: What is the reputation of D in the community? ["Oh, he's super nice. Wouldn't hurt a fly!"]
Prosecutor on cross: Did you know that D brutally attacked an old lady in the parking lot last year on Christmas? <-- specific act, extrinsic evidence too?

[Charger]

Alright, late night confusion abound.

Outline says for FRE Character Evidence Criminal Cases (although, I guess this applies elsewhere as well).

CE of D:

P cannot first offer CE of D. Check.
D can offer CE to prove or disprove conduct. Check - "opening the door" as to their own CE.
P can rebut pertinent character trait of D. Check.
On direct: only Reputation and Opinion. Check.
On cross: Reputation, Opinion, and Specific Acts, but no Extrinsic Evidence.

So where the outline says "on direct" and "on cross," which parties are doing the asking? I am going to assume that it's a prosecutor examining his own witness, and then the defense attorney cross-examining the prosecutor's witness? And the reverse too--the defense attorney will be directly examining his own witness, and then the prosecutor will cross-ex the defense witness?

On that notion, what is the difference in specific acts and extrinsic evidence?

If CE is cannot be used to prove conduct in conformity therewith, at least save for the sexual assault/child molestation exceptions, what's the actual difference between specific acts and extrinsic evidence? If you can't prove a specific act via extrinsic evidence, then the only literal thing that specific acts are good is impeachment of the witness, no?

What am I missing here?

EDIT:

This is the example I have in my head.

Defense Attorney on direct: What is your opinion of the [defendant]?
Defense Attorney on direct: What is the reputation of D in the community? ["Oh, he's super nice. Wouldn't hurt a fly!"]
Prosecutor on cross: Did you know that D brutally attacked an old lady in the parking lot last year on Christmas? <-- specific act, extrinsic evidence too?

I think extrinsic evidence is more like:

Prosecutor on cross: Did you know that D brutally attacked an old lady in the parking lot last year on Christmas? <-- specific act, not extrinsic
Witness: Nope, had no clue.
Prosecutor on cross: This a page from your diary in which you wrote, "D brutally attacked an old lady in the parking lot on Christmas last year!" ISN'T IT?! <-- extrinsic, as in evidence not of the witness's own testimony

Can someone confirm this? Cause if not I don't under evidence at all...

[Tiago Splitter]

The classic example of character evidence goes like this:

1. D calls witness who says D is a great guy with a wonderful reputation for truthfulness
2. P on cross asks witness if he knows that D lied on his tax returns

Regardless of whether the witness says yes or no, P can't produce the tax returns to prove that in fact D really did lie on them. He just has to take the witness' answer.

[fadedsunrise]

Alright, late night confusion abound.

Outline says for FRE Character Evidence Criminal Cases (although, I guess this applies elsewhere as well).

CE of D:

P cannot first offer CE of D. Check.
D can offer CE to prove or disprove conduct. Check - "opening the door" as to their own CE.
P can rebut pertinent character trait of D. Check.
On direct: only Reputation and Opinion. Check.
On cross: Reputation, Opinion, and Specific Acts, but no Extrinsic Evidence.

So where the outline says "on direct" and "on cross," which parties are doing the asking? I am going to assume that it's a prosecutor examining his own witness, and then the defense attorney cross-examining the prosecutor's witness? And the reverse too--the defense attorney will be directly examining his own witness, and then the prosecutor will cross-ex the defense witness?

On that notion, what is the difference in specific acts and extrinsic evidence?

If CE is cannot be used to prove conduct in conformity therewith, at least save for the sexual assault/child molestation exceptions, what's the actual difference between specific acts and extrinsic evidence? If you can't prove a specific act via extrinsic evidence, then the only literal thing that specific acts are good is impeachment of the witness, no?

What am I missing here?

EDIT:

This is the example I have in my head.

Defense Attorney on direct: What is your opinion of the [defendant]?
Defense Attorney on direct: What is the reputation of D in the community? ["Oh, he's super nice. Wouldn't hurt a fly!"]
Prosecutor on cross: Did you know that D brutally attacked an old lady in the parking lot last year on Christmas? <-- specific act, extrinsic evidence too?

I'm confused about this one too! I stared at an MBE like this and gave up after half an hour...
Does it change anything if Defense Attorney calls friend Joe on direct, who's known D for 10 years, and Joe says [Oh, he's super nice!], but then the prosecutor asks Joe [Did you know D beat up 3 people in the last year??]

The explanation for that was that Prosecutor's questioning only goes to making Joe seem inaccurate, but NOT to rebut Joe's character evidence of D. I don't honestly see the difference...

[robinhoodOO]

I thought child support payments to a prior spouse were SP and treated as SP at divorce, like educational loans (notwithstanding the reciprocal or 10-year exceptions). Community property isn't my best subject, though.

Looks like you're right. Per Barbri, debts incurred before marriage are separate debts and are given back to the spouse who incurred them when the divorce happens. So the judge first gives back everyone their separate debts, then splits the rest between the two.

What got me is that once the couple is married the guy's child support becomes a community debt. But then on divorce they give it all back to him.

Oh it gets even better, the non-obligor spouse has a 3 year statute of limitations for reimbursement when there is sufficient non-exempt SP (FC 920(c)(1). Very easy to blow the SOL during marriage and get screwed at divorce. No model answers ever address this, but it's in BarBri big outline.

I tried to go thru the big outline for community property and also for wills/trusts, but holy shit it's so long. I felt like I was wasting my time learning a lot of irrelevant material, but I never took those classes in law school so maybe I should just grind it out.

What you get from the big outline in community property is details that don't make a huge difference in a passing answer. I think Prof. Bloomberg from UCLA contributed for the most part for the BarBri CP outline. There are Fam Code details that broke BK bar graders wouldn't know when grading your exam, example a child born after the marriage ended is presumed "a child of the marriage" if born within 300 days of the judgment of dissolution. So that one last go before the divorce can create that presumption without having a paternity test. Lean Sheets really does a decent job making it simple, except it should emphasize Lucus/Anti Lucas is only applicable to titled property.

I'm not sure how you meant to restrict the "Anti-Lucas Statute" with the title qualifier, but I'm pretty sure a 2640 reimbursement claim applies to any/all CP acquired with SP at dissolution.

The outlines and stuff I have also state that Lucas and Anti-Lucas is in reference to joint titled property (except in the case where SP was used prior to 1987 and title solely in W's name, otherwise joint titled).

Now I'm confused.

Title as in ownership. Like how you differentiate between title and possession for purposes of false pretenses and larceny. I'm just clarifying that "title" does mean there was to be both names on a deed for 2640 to kick in. Any property purchased with SP that is considered CP can result in an SP reimbursement.

[BuenAbogado]

Can anyone give a list of the "In re marriage of" cases we need to know for CP with a brief explanation?

[Calicakes]

My tutor graded my previous essays ( from the Feb 2015) and said that I had too many conclusory statements too.

I've been really trying to work on that. D pointed a gun at v, pointing a gun at someone is not something reasonable people do, nor is it something that considered normal behavior. Therefore, D pointing a gun at V is considered extreme and outrageous conduct.

Ah, I see what you're doing. You're not relating back to the outrageous and extreme conduct in your initial sentence post-rule, but rather using that solely in your conclusion. Hmm, this definitely works, as long as I remember to change my form.

From my Tutor:

D pointed a gun at V, pointing a gun at someone is not something reasonable people do, nor is it something that considered normal behavior. Therefore, D pointing a gun at V is considered extreme and outrageous conduct.

Yes, your answer is not conclusory. The inference, which is explaining why the facts are important is in pink. The facts are in yellow. The conclusion is in blue.

The only way to improve your statement is to strengthen your inference, which is the pink. You are doing a good job explaining that reasonable people would not point a gun, but extreme and outrageous conduct is an even higher standard.

For example, you could have said the below:

D pointed a gun at V, which is offensive and scary because guns are used to kill people and reasonable normal people do not use guns on others. Therefore, D pointing a gun at V is considered extreme and outrageous conduct.

[SpAcEmAn SpLiFF]

Alright, late night confusion abound.

Outline says for FRE Character Evidence Criminal Cases (although, I guess this applies elsewhere as well).

CE of D:

P cannot first offer CE of D. Check.
D can offer CE to prove or disprove conduct. Check - "opening the door" as to their own CE.
P can rebut pertinent character trait of D. Check.
On direct: only Reputation and Opinion. Check.
On cross: Reputation, Opinion, and Specific Acts, but no Extrinsic Evidence.

So where the outline says "on direct" and "on cross," which parties are doing the asking? I am going to assume that it's a prosecutor examining his own witness, and then the defense attorney cross-examining the prosecutor's witness? And the reverse too--the defense attorney will be directly examining his own witness, and then the prosecutor will cross-ex the defense witness?

On that notion, what is the difference in specific acts and extrinsic evidence?

If CE is cannot be used to prove conduct in conformity therewith, at least save for the sexual assault/child molestation exceptions, what's the actual difference between specific acts and extrinsic evidence? If you can't prove a specific act via extrinsic evidence, then the only literal thing that specific acts are good is impeachment of the witness, no?

What am I missing here?

EDIT:

This is the example I have in my head.

Defense Attorney on direct: What is your opinion of the [defendant]?
Defense Attorney on direct: What is the reputation of D in the community? ["Oh, he's super nice. Wouldn't hurt a fly!"]
Prosecutor on cross: Did you know that D brutally attacked an old lady in the parking lot last year on Christmas? <-- specific act, extrinsic evidence too?

I'm confused about this one too! I stared at an MBE like this and gave up after half an hour...
Does it change anything if Defense Attorney calls friend Joe on direct, who's known D for 10 years, and Joe says [Oh, he's super nice!], but then the prosecutor asks Joe [Did you know D beat up 3 people in the last year??]

The explanation for that was that Prosecutor's questioning only goes to making Joe seem inaccurate, but NOT to rebut Joe's character evidence of D. I don't honestly see the difference...

Well now I'm confused too. That looks like a textbook case of defendant opening the door to his character for "niceness" (let's assume niceness is a relevant character trait here) and prosecutor rebutting that contention on cross-examination with a specific act of not being nice.

[Tiago Splitter]

I'm confused about this one too! I stared at an MBE like this and gave up after half an hour...
Does it change anything if Defense Attorney calls friend Joe on direct, who's known D for 10 years, and Joe says [Oh, he's super nice!], but then the prosecutor asks Joe [Did you know D beat up 3 people in the last year??]

The explanation for that was that Prosecutor's questioning only goes to making Joe seem inaccurate, but NOT to rebut Joe's character evidence of D. I don't honestly see the difference...

In practice there really isn't much difference. The key is that the jury is not supposed to take as substantive evidence the information that D beat up 3 people in the last year. They are only supposed to use Joe's "No" answer to determine whether Joe is really accurate when he says D is a super nice guy.

[BuenAbogado]

Can someone give a good evidence essay approach?

I'm struggling with organization, specifically for headings for "Competency" "Authentication" "Reliability", etc. and hearsay within hearsay organization.

Example:

In May, Vic and his wife, Wanda, were sitting in the kitchen when Vic received a telephone call. During the call, Vic became quite angry. As soon as he hung up, he said the following to Wanda: “That rat, David, just called and told me that he was going to make me sorry! He used some sort of machine to disguise his voice, but I know it was him!”

[Charger]

Is it just me or are the Barbri essays for CA mostly from February exams? Like, out of the 8 con law essays, 7 are from February administrations.