0a. Marital & Non-Marital Property

What triggers Marital & Non Marital Property?

Property dispute between spouses, or between unmarried cohabitants who have separated

Coverture

Married women’s rights absorbed by husband. Women lost the right to own property, sign contracts, or keep wages.

Old Death Rules:

• Dower & Curtesy: Old, gender-unequal ways of handling property at death

Separate (Common Law) Property (40 states)

1. Core Philosophy?

2. Who owns During Marriage?

3. Who owns At Divorce?

4. Who owns At Death?

5. What is Divided?

1. Individualistic — each spouse owns their own earnings

2. By spouse who acquired the property (if both on title, analyze under what type of tenancy e.g. TIC or Joint)

3. Equitable distribution (fair, but may not be 50/50)

4. Surviving spouse gets "elective/forced share" (1/3–1/2) to prevent disinheritance (e.g. Husband is crazy and conveys property to Lady Gaga)

5. Marital property (earnings during marriage; sometimes gifts/pre-marital)

What is Separate Property strictly limited to?

1. Property owned before marriage.

2. Property acquired after marriage by gift, bequest, devise, or descent.

3. Any money, income, or value that is organically generated by the property (e.g. rental income). (Can be sold/given away without spouse's consent).

Community Property (10 states)

1. Core Philosophy?

2. Who owns During Marriage?

3. Who owns At Divorce?

4. Who owns At Death?

5. What is Divided?

1. Equal partnership — acknowledges non-financial labor

2. Income/Property is 50/50

3. Divided equally or equitably

4. Since survivor already owns half, no elective share needed

5. Community property (acquired during marriage)

When is Community Property established?

All property/income acquired by a married person during the marriage while domiciled in CA is CP UNLESS consent says otherwise.

Equitable Distribution: A Fairness Safety Net in Separate Property Jurisdictions - What are the factors?

1. Need (including child support, necessities)

2. "Rehabilitation" (allow spouse to obtain marketable skills)

3. Contributions during marriage (including domestic work)

4. Age, health, occupation, income, vocational skills

5. Length of marriage

6. Fault / marital misconduct (some states)

7. Alimony: Courts heavily prefer dividing property permanently (clean break) over alimony/forcing pay, which is a disfavored secondary option.

Wilbur v. DeLapp

A non-married relationship lasted 18 years where woman contributed income + homemaking. Court held equitable claim. Court looked at intent.

We have Community Property and Separate Property for married couples. What should unmarried couples rely on?

Common Law Claims:

1. Express Contract

2. Implied Contract

3. Quantum Meruit

4. Constructive Trust

5. Joint Venture

Tompkins v. Jackson

13-year non-married relationship (woman was a homemaker) with oral contract for share of earnings.

COURT HELD P LOST:

1. Breach of Contract - Homemaking is gratuitous, not consideration.

2. Quantum Meruit (Prevent Unjust Enrichment): No writing.

3. Constructive Trust (Recover Specific Property): Woman made no financial contributions to property.

4. Unjust Enrichment: Child support negated unjust enrichment.

5. Joint Venture: No specific skills contributed, no control.

What can unmarried couples contract for?

• Non-sexual services that do NOT arise directly from the relationship (e.g., formal business arrangement).

• Explicit written agreements for specific property divisions.