|
1. Introduction
|
1 |
| Identify |
| Characterize |
| Value |
| Divide |
| |
| 2. Characterization / Tracing / Reimbursement |
1 |
| B. Characterization / Tracing / Reimbursement |
1 |
| 1. Separate Property |
1 |
| 2. Community Property |
1 |
| 3. Inception of Title |
1 |
| 4. Mutation |
2 |
| 5. Community Out-First Rule |
2 |
| 6. Clearinghouse and Identical Sum Inference Methods |
2 |
| 7. Minimum Sum Balance Method |
2 |
| 8. Pro Rata Approach |
3 |
| 9. Increases |
3 |
| 10. Commingling |
3 |
| 11. Property of Mixed Character |
3 |
| A. Characterization - Presumptions |
3 |
| 1. Community Property Presumption |
3 |
| 2. Specific Presumptions |
4 |
| a. Transfer to a Child |
| b. Mutation |
| c. Credit |
| d. Community Credit |
| e. Purchase Money |
| f. Withdrawal of Commingled Funds |
| g. Deed Recitals |
| h. Interspousal Conveyance |
| i. Including Other Spousess Name in Title |
| j. Income from Interspousal Gift |
| B. Characterization - Specific Types of Property |
5 |
| 1. Property Acquired by Recovery of Personal Injuries |
5 |
| a. Intangible Damages that are Separate Property Tangible or Economic Damages that are Community Property |
| 2. Real Estate Related Property Interests |
6 |
| a. Earnest money contracts |
| b. Lease option with deed placed in escrow |
| c. Contract for deed |
| d. Adverse possession |
| e. Fixtures |
| f. Improvements on separate property |
| g. Cemetery plots |
| h. Crops |
| i. Timber |
| 3. Oil, Bas, and Mineral Interests |
7 |
| a. Leasehold interests |
| b. Working interests |
| c. Royalty interest |
| d. Bonus payments |
| e. Delay rentals |
| f. Interests located in foreign state |
| 4. Rents and Other Income From Separate Property |
8 |
| 5. Livestock |
8 |
| 6. Insurance |
9 |
| a. Life insurance |
| b. Employee life insurance |
| c. Workers compensation insurance |
| d. Disability insurance |
| e. National service life insurance |
| f. Servicemens group life insurance |
| g. Property insurance |
| h. Insurance renewal commissions |
| i. Insurance agent termination payments/deferred compensation |
| j. Contingent fee contracts |
| 7. Employee Benefits |
10 |
| a. Accrued vacation and sick leave benefits |
| b. Disability benefits |
| c. Employment bonuses |
| d. Early retirement or separation bonuses |
| 8. Employment Contracts - Athletes |
11 |
| 9. Earnings of Spouse and Child |
11 |
| 10. Lottery Prizes |
11 |
| 11. Professional Degree |
11 |
| 12. Retirement and Pension Benefits |
12 |
| a. Defined benefit plans |
| b. Defined contribution plans |
| c. Disability retirement benefits |
| d. Social security disability benefits |
| e. Texas statutory retirement plans |
| f. Railroad retirement benefits |
| g. Military disability and retirement benefits |
| h. Federal (Non-military) Retirement and other benefits |
| 13. Intellectual Property - Copyrights, Patents, and Trademarks |
14 |
| 14. Trusts |
15 |
| a. Undistributed trust income |
| b. Distributed trust income |
| 15. Stock Dividends |
16 |
| 16. Stock Splits |
16 |
| 17. Cash Dividend From Stock |
16 |
| 18. Stock Options |
16 |
| 19. Goodwill |
16 |
| 20. Professional Corporation |
16 |
| 21. Partnerships |
17 |
| a. Partnership interests |
| b. Partnership property |
| c. Distributions of profits and surplus |
| d. Right to participate in management |
| e. Joint venture |
| f. Limited partnership |
| 22. Corporations |
17 |
| a. Inception of title rule applies |
| b. Increase in value of stock |
| c. Alter ego |
| d. Subchapter S corporation |
| C. Reimbursement |
18 |
| 1. A Claim for Reimbursement is an Equitable Right |
18 |
| 2. The Types of Reimbursement and Measures of Reimbursement |
19 |
| a. Debts, insurance, interest, and taxes (not limited to purchase money indebtedness) |
| b. Improvements to real property |
| c. Enhancement in value due to community time, toil, talent or effort |
| d. Life insurance policy premiums For separate property lost to commingling |
| 3. Where Marital property Reimbursement Might Not Be Available |
21 |
| a. For paying for family living expenses |
| b. For cost of college degree |
| c. For payment of alimony or chid support |
| d. For reimbursement claims against third parties |
| 4. Where Marital Property Reimbursement May Be Available |
21 |
| a. Where community credit is used to guarantee corporate debt |
| b. Where separate funds are deposited into community bank accounts |
| c. Subchapter S. corporations |
| d. Where distributions from closely-held corporation exceed profits |
| e. Burden of proof |
| D. Checklist: Direct Examination of CPA for Tracing / Characterization / Reimbursement |
21 |
| E. Checklist: Cross Examination of CPA for Tracing / Characterization / Reimbursement |
23 |
| F. Characterization of Personal Injury and Workers Compensation Awards |
25 |
| 1. Basic Information |
25 |
| a. Date of marriage |
| b. Date of injury |
| c. Date of settlement/judgment |
| 2. Applicable Standards |
25 |
| a. Burden of Proof |
| b. Standard of Proof |
| 3. Determination of Percent or Value of Total Recovery |
| Allocated to Various Elements of Damages |
25 |
| a. Medical expense |
| b. Loss of earning capacity |
| 4. Sources of Documentary Evidence |
26 |
| a. Correspondence between parties |
| b. Pleadings |
| c. Written discovery |
| d. Depositions |
| e. Medical and psychological records |
| f. Expert Material Briefs |
| h. Answers to jury questions |
| i. Judgment |
| j. Settlement and agreements |
| k. Release |
| 5. Testimonial Proof |
27 |
| a. Testimony of claimant |
| b. Testimony of attorney for claimant |
| c. Testimony of representatives of defendant |
| |
| 3. Inception of Title |
27 |
| A. Introduction |
27 |
| B. Inception of Title - Back to Basics |
27 |
| 1. How is characterization determined |
27 |
| 2. When does inception of title occur |
27 |
| C. What is the Date of Acquisition? |
28 |
| D. When is Property Acquired |
28 |
| E. Legal Title and Equitable Title |
28 |
| F. Legal and Equitable Title are of Equal Dignity |
29 |
| G. Community Property Rights in Title |
29 |
| 1. Leasehold |
29 |
| 2. Life estate |
29 |
| 3. Fee simple |
29 |
| H. Rights are Same in Perfected or Inchoate Title |
29 |
| I. Corporate Stock Appreciation |
29 |
| J. Inception of Title Does Not Apply to Retirement or Pension Benefits |
30 |
| K. Problems With Pension |
30 |
| 1. Defined Benefit Plans |
30 |
| 2. Defined Contribution Plans |
36 |
| 3. Miscellaneous Pension Issues |
38 |
| |
| 4. Checklist, Predicates and Presentation of Proof in Property Cases |
42 |
| A. Introduction |
42 |
| B. Checklist |
42 |
| 1. Marshaling Data |
42 |
| a. Potential parties |
| b. Potential witnesses |
| c. Potential documents |
| 2. Data Sources |
47 |
| C. Predicates |
48 |
| 1. General Predicates |
48 |
| a. Blackboards / Sketchpads |
| b. Business records |
| c. Motion pictures |
| d. Photographs |
| e. Physical evidence: articles and objects |
| f. Summaries |
| g. Tape recordings |
| h. Television tapes |
| i. Videotapes |
| j. Views |
| 2. Valuing Valuation |
66 |
| D. Property |
66 |
| 1. Real Estate |
66 |
| 2. Personal Property |
67 |
| E. Factors Considered in Dividing Property |
69 |
| 1. General |
69 |
| 2. Particular Factors |
69 |
| a. Future need for support |
| b. Fault in the breakup of the marriage |
| c. Disparity of incomes or of earning capacities |
| d. Spouses capacities and abilities |
| e. Benefits the innocent spouse would have derived from the continuation of the marriage |
| f. Business opportunities |
| g. Education and training |
| h. Relative physical conditions |
| i. Relative financial condition and obligations |
| j. Disparity of ages |
| Size of marital estate |
| l. Size of non-marital estate |
| m. Expected inheritance of spouses |
| n. Nature of property |
| o. Attorneys fees |
| p. Custody of children |
| q. Reimbursement between estates |
| r. Gifts to spouse during marriage |
| s. Excessive marital property gifts to others |
| t. Wasting marital assets |
| u. Out of state property |
| v. Tax consequences |
| w. Credit for temporary alimony paid |
| x. Insurance proceeds |
| y. Fraud |
| z. Torts |
| F. Techniques for Division of Property |
76 |
| 1. Partition or Sale of Property |
76 |
| 2. Sale of Homestead |
77 |
| 3. Setting Aside Homestead |
77 |
| a. General |
| b. Limitations upon use of homestead |
| c. Obligation to make payments, etc |
| d. Disposition of proceeds |
| 4. Sole Proprietorship |
78 |
| 5. General Partnership |
79 |
| a. General |
| b. Division of partnership interests |
| c. Cannot award specific partnership assets |
| d. Effect of award to non-partner spouse |
| 6. Limited Partnership |
81 |
| a. General |
| b. Division of Divorce |
| 7. Joint Ventures |
82 |
| 8. Closely Held Corporations |
82 |
| a. General |
| b. Alter ego |
| 9. Professional Practice |
83 |
| 10. Goodwill |
84 |
| a. General |
| b. Goodwill of professional practice |
| 11. Foreign Personalty |
85 |
| 12. Money Judgment |
86 |
| a. General |
| b. Terms of payment |
| c. Security for payment |
| d. Execution of promissory note |
| e. Settlement of breach of contract action |
| 13. Appointment of Receiver, Trustee, or Commissioner |
87 |
| a. General |
| b. No bond required |
| 14. Equitable Lien |
88 |
| a. General |
| b. Judgment lien distinguished |
| c. Lien on homestead |
| d. Lien on separate property |
| 15. Property Purchased in name of Third Parties |
90 |
| 16. Fraudulent Transfers of Property |
90 |
| a. General |
| b. Gifts to third parties |
| c. Transfers to paramours |
| d. Fraudulent concealment and dissipation |
| e. Remedies |
| 17. Constructive Trustee |
94 |
| 18. Debts and Encumbrances |
94 |
| a. Debts to third persons |
| b. Disposition of exempt property |
| c. Disposition of non-exempt property |
| d. Right of indemnity |
| e. Right to Reimbursement |
| 19. Tax Liabilities |
95 |
| a. Tax is Not a Debt |
| b. Liability for Tax Assessments |
| c. Payment for Reimbursement |
| 20. Beneficial Interests in Insurance Policies |
97 |
| 21. Retirement Benefits |
97 |
| 22. Bankruptcy and Divorce |
97 |
| |
| 5. Valuation |
98 |
| A. Sources of Valuing Assets |
98 |
| 1. Real Estate |
98 |
| 2. Automobiles, Planes, Boats |
98 |
| 3. Manufactured Homes |
99 |
| 4. Business |
99 |
| 5. Retirement Benefits |
100 |
| 6. Intellectual Property and Trade-Marks, Names or Secrets |
100 |
| 7. Animals and Livestock |
100 |
| 8. Crops and Timber |
100 |
| 9. Household Items |
100 |
| 10. Art, Jewelry and Collectibles |
101 |
| 11. Club Memberships |
101 |
| |
| 6. Property Agreements |
101 |
| A. Reference Material |
101 |
| B. Uniform Premarital Agreement Act |
101 |
| 1. Definitions |
101 |
| 2. Formalities |
102 |
| 3. Content |
103 |
| 4. Effect of Marriage |
105 |
| 5. Amendment or Revocation of Agreement |
105 |
| 6. Enforcement |
105 |
| 7. Enforcement in the Event of a Void Marriage |
108 |
| 8. Limitations of Actions |
109 |
| 9. Application and Construction |
109 |
| 10. Short Title |
110 |
| C. Other Property Agreements |
110 |
| 1. Property Defined |
110 |
| 2. Partition or Exchange of Community Property |
110 |
| 3. Agreement Between Spouses Concerning Income or Property Derived From Separate Property |
111 |
| 4. Formalities |
112 |
| 5. Enforcement |
112 |
| 6. Partition or Exchange Agreements: Rights of Creditors, Recordation |
114 |
| 7. Summary |
114 |
| D. Marital Agreement - Litigation |
115 |
| 1. Is The Agreement The Product of an Arms-Length Transaction or an Equal Bargaining Position? |
116 |
| 2. What Was The Status of the Parties Before the Agreement was Signed and at the Time of Enforcement? |
116 |
| 3. Was There Adequate Legal Representation for Both Parties? |
118 |
| 4. Was There Full and Complete Disclosure Before the Agreement was Signed? |
119 |
| 5. Was Either Party Pressured to Sign the Agreement Through Undue Influence, Duress, or Coercion? |
121 |
| 6. Was There Legal Consideration or Adequate Consideration For the Waiver of Statutory or Common Law Rights In the Agreement Itself? |
122 |
| 7. Proving Spouse Understood Agreement at Time of Execution |
122 |
| 8. Proving Spouse Had Adequate Time to Consider Terms of Antenuptial Agreement Prior to Execution |
124 |
| 9. Conscionability |
125 |
| |
| 7. Fringe Benefits of Employment |
126 |
| A. Long-Term Employment Agreements |
126 |
| B. Bonuses |
127 |
| C. Restricted Stock and Stock Options |
128 |
| D. Vacation Time |
133 |
| |
| 8. Retirement Plans |
134 |
| A. Fact Sheet for Legal Assistants and Clients |
134 |
| 1. Participant |
134 |
| 2. Alternate Payee |
135 |
| 3. Facts |
135 |
| 4. The Plan |
136 |
| 5. To Do |
138 |
| B. Fact Sheet for the Plan |
139 |
| 1. Employee Information |
139 |
| 2. The Plan |
139 |
| 3. Please Send the Following |
144 |
| 4. Please Provide Any Other Information |
144 |
| C. Fact Sheet for the Attorney |
145 |
| 1. The Plan |
144 |
| 2. Other Considerations |
148 |
| D. Closing the Property Case |
148 |
| |
| 9. Military and Civil Service Retirement Benefits |
160 |
| A. Military Members |
160 |
| 1. Active Duty Member |
160 |
| 2. Retired Active Duty Member |
161 |
| 3. Reserve Component / National Guard Member |
162 |
| 4. Retired Reserve |
163 |
| 5. Military Retirement Apportionment Request |
164 |
| B. Civil Service Retirement Benefits |
165 |
| 1. Two Federal Retirement Systems |
165 |
| 2. Benefits Available |
165 |
| 3. Division of Retirement Benefits and Direct Payments |
166 |
| 4. Survivor Benefits for Former Spouse |
166 |
| 5. Drafting Enforceable Decrees |
168 |
| 6. Drafting Decrees Dealing With Awards of Thrift Savings Plan Benefits |
183 |
| 7. Transfer From CSRS to FERS |
185 |
| 8. Health Insurance Benefits |
186 |
| 9. Civil Service Disability Benefits to the Extent They Are Earned During the Marriage Are Divisible |
186 |
| 10. Federal Workers Compensation Benefits |
186 |
| 11. Assignment of Federal Employees Group Life Insurance Benefits Now Allow |
186 |
| |
| 10. Miscellaneous Torts |
187 |
| A. Life Insurance Benefits |
187 |
| B. The Refinanced Home Loan |
189 |
| C. Paying Obligations From a Prior Marriage During |
189 |
| D. Alimony |
191 |
| E. Quasi-Community Property |
192 |
| F. Foreign Marriage Contracts |
193 |
| G. Torts |
195 |
| 1. Spousal Fraud |
195 |
| 2. Third Party Tort Claims |
197 |
| H. Trusts |
198 |
| I. Reimbursement - The Guaranteed Loan |
199 |
| J. Commingling |
200 |
| |
| 11. Alimony |
201 |
| |
| 12. Legal Issues |
202 |
| A. Legal Issues: Property |
202 |
| 1. Alimony |
202 |
| 2. Alter Ego |
202 |
| 3. Bonus Payments |
203 |
| 4. Burden of Proof - Character |
203 |
| 5. Burden of Proof - Reimbursement |
203 |
| 6. Cemetery Plot |
203 |
| 7. Commingling |
203 |
| 8. Community Credit - Improvements |
203 |
| 9. Community Credit - Acquisition |
204 |
| 10. Community Out First - Tracing |
204 |
| 11. Constructive Fraud |
204 |
| 12. Corporations |
204 |
| 13. Crops |
205 |
| 14. Debt |
205 |
| 15. Delay Rentals |
205 |
| 16. Disability Insurance |
205 |
| 17. Dividends - Cash |
205 |
| 18. Dividends - Stock |
205 |
| 19. Earned Acreage and Farmouts |
206 |
| 20. Earnings of Minors |
206 |
| 21. Earnings of Spouse |
206 |
| 22. Employee Benefits |
207 |
| 23. Enhancement Value |
207 |
| 24. Fortuitousness and Resulting Appreciation of Separate Property |
207 |
| 25. Fraud |
207 |
| 26. General Economic Condition |
207 |
| 27. Goodwill (Professional Practice) |
207 |
| 28. Goodwill (Professional) |
208 |
| 29. Inception of Title |
208 |
| 30. Interest Income |
208 |
| 31. Leasehold Interests (Minerals) |
209 |
| 32. Life Insurance (Cash Surrender Value) |
209 |
| 33. Life Insurance (Premiums) |
209 |
| 34. Liquidating Dividends |
209 |
| 35. Livestock |
209 |
| 36. Loss of Consortium |
210 |
| 37. Lottery Prizes and Gambling Winnings |
210 |
| 38. Mercantile Business |
210 |
| 39. Merger Transactions |
210 |
| 40. Mutation |
210 |
| 41. Mutual Funds |
210 |
| 42. Oil and Gas Operating Income |
210 |
| 43. Partnership |
211 |
| 44. Partnership (Profits Distributed) |
211 |
| 45. Partnership (Profits Undistributed) |
211 |
| 46. Presumption (Joint Title) |
211 |
| 47. Presumption (Community Property) |
212 |
| 48. Presumption (Burden of Proof) |
212 |
| 49. Presumption (Rebuttable) |
212 |
| 50. Presumption (Irrebuttable / Real Est. |
212 |
| 51. Presumption (Gift / Participation) |
212 |
| 52. Presumption (Gift to Spouse) |
213 |
| 53. Presumption (Gift / Spouse / Income) |
213 |
| 54. Presumption (Constructive Fraud) |
213 |
| 55. Rebutting the Community Presumption |
213 |
| 56. Reimbursement (General) |
214 |
| 57. Reimbursement (Improvements) |
214 |
| 58. Reimbursement (Living Expenses) |
214 |
| 59. Reimbursement |
214 |
| 60. Reimbursement (Time, Toil, Talent) |
215 |
| 61. Reimbursement (Cannot Trace) |
215 |
| 62. Rents from Separate Property |
215 |
| 63. Retained Earnings |
215 |
| 64. Royalty Interests |
215 |
| 65. Separate Property (Defined) |
216 |
| 66. Separate Property (Personalty) |
216 |
| 67. Separate Property (Realty) |
216 |
| 68. Social Security Benefits |
216 |
| 69. Stock Increase in Value |
216 |
| 70. Tax Benefits |
216 |
| 71. Tax Liability |
217 |
| 72. Tax Consequences (Future) |
217 |
| 73. Timber and Mineral Interests |
217 |
| 74. Tracing |
217 |
| 75. Tracing (Loan Proceeds) |
218 |
| 76. Tracing (Expert Testimony) |
218 |
| 77. Trust Income |
219 |
| 78. Waiving the Rule |
219 |
| 79. Workers Compensation Benefits |
219 |
| 80. Working Interests |
220 |
| 81. Wrongful Death |
220 |
| B. Legal Issues: Division Factors |
220 |
| 1. Fault of Parties |
220 |
| 2. Needs of Children of the Marriage (including adults) |
221 |
| 3. Spouse to Whom Custody is Granted |
222 |
| 4. Amount of Child Support Paid |
222 |
| 5. Need for Future Support |
222 |
| 6. Needs of Spouses in Future and Disparity of Earnings Power |
222 |
| 7. Business Opportunities |
223 |
| 8. Spouses Capacities and Abilities |
223 |
| 9. Relative Financial Condition and Obligations |
224 |
| 10. Education and Future Employability |
224 |
| 11. Ages of Spouses |
224 |
| 12. Health of Spouses |
224 |
| 13. Benefits Innocent Spouses Would Receive from Continuation of Marriage |
225 |
| 14. Wasting of Community Assets |
225 |
| 15. Credit for Temporary Alimony Paid |
226 |
| 16. Size of the Estate |
226 |
| 17. Size of Spouses Separate Estates |
226 |
| 18. Community Indebtedness and Liabilities |
227 |
| 19. Tax Consequences |
227 |
| 20. Community Funds Used to Purchase Out-of-State Property |
227 |
| 21. Gifts to Spouse During Marriage |
228 |
| 22. Excessive Gifts to Children |
228 |
| 23. Expected Inheritance |
228 |
| 24. Attorneys Fees |
228 |
| 25. Reimbursement Between Marital Estate and Increase in Value of Separate Property by Community Effort |
229 |
| 26. Nature of Property |
229 |
| 27. Alcoholism |
230 |
| C. Enforcing Property Division |
230 |
| 1. Law |
230 |
