CHAPTER 7 Property Acquired or Improved with Both Separate and Marital Property

• Jurisdiction: United States
• Publication year: 2021

CHAPTER 7 Property Acquired or Improved with Both Separate and Marital Property

Chapter Contents

§ 7.01 Property Acquired with Contemporaneous Separate and Marital Property Consideration

[1] Introduction
[2] The Pro Rata Approach Applied in Community Property States [3] The Unitary Property Approach [4] Purchases in Common Law States

§ 7.02 Different Approaches to Characterizing Property Acquired Over Time

[1] Introduction
[2] The Inception of Title Approach
[3] The Time of Vesting Approach
[4] The Pro Rata Approach
[5] The Presumption of a Gift
[6] Distinctions Based upon the Type of Property Involved
[7] Residences Purchased Before Marriage and Transmutation

§ 7.03 Characterizing Installment Purchases

[1] Definition
[2] Inception of Title Approach
[3] Time of Vesting Approach
[4] Pro Rata Approach

§ 7.04 Characterizing Improvements

[1] Definition
[2] Characterization of Improvements

[a] Majority Rule—Funds Contributed Toward Improvements Are a Loan
[b] Minority View—Funds Contributed Toward Improvement Do Affect Ownership
[c] Other Approaches
[d] The Effect of Title

§ 7.05 Using Marital Funds to Pay a Premarital Mortgage or Using Separate Funds to Pay a Mortgage Loan Obtained During Marriage

[1] Definition of a Credit Purchase
[2] Characterizing the Loan Proceeds

[a] In General
[b] The Primary Intention of the Lender Test
[c] The Collection Rights of the Lender Test
[d] The Nature of Security Provided Test
[e] The Use of Proceeds Test
[f] The Source of Repayment Test
[g] The Effect of a Prenuptial Agreement
[h] The Identity of the Lender

[3] The Inception of Title Approach

[a] In General

[i] Credit for a Down Payment

[b] The Distinction Between a Credit Purchase and an Installment Purchase
[c] Applying Inception of Title Principles to Real Estate Transactions
[d] Reimbursement

[i] In General
[ii] Reimbursement in Equitable Distribution Sales

[4] The Time of Vesting Approach
[5] The Pro Rata Approach

[a] One Rule—Funds Contributed Toward Loan Payments Are Treated as Improvements
[b] Another View—Loan Payments Can Affect Ownership

[6] Unitary Property Approach
[7] Characterizing Refinancing Transactions

[a] In General
[b] Inception of Title Approach
[c] Pro Rata Approach

[8] Loan Payments After Separation but Before Divorce
[9] Special Equity
[10] Transmutation

§ 7.06 Trust Principles and Acquisitions Over Time

[1] In General
[2] Resulting Trusts
[3] Express Trusts
[4] Constructive Trusts

§ 7.07 Characterizing Property Acquired by...