Brandt, Elizabeth

English

University of Idaho College of Law

UIdaho LawDigital Commons @ UIdaho LawArticles Faculty Works1991Introduction to the First Annual Review ofCommunity Property LawElizabeth BrandtFollow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarshipPart of the Family Law CommonsINTRODUCTION TO THE FIRSTANNUAL REVIEW OF COMMUNITYPROPERTY LA WELIZABETH BARKER BRANDTIn 1989 a new professional group called the Family Council ofCommunity Property States held its organizational meeting in Phoe-nix, Arizona. The group, comprised of delegates from the Family LawSections of the various state bar associations in community propertystates, had as its goal the study and exchange of information on com-munity property issues and developments. One of the major concernsof those in attendance at that meeting was the lack of a comprehen-sive, high-quality journal or professional publication devoted to com-munity property issues. The participants attending the meetingbelieved that this gap in the professional literature posed serious ob-stacles to family law practitioners and scholars in the various commu-nity property states.'With the support of the Family Law Council, The University ofIdaho Law Review has responded to the call for a professional journaldevoted to community property issues with the Annual Review ofCommunity Property Law. The Annual Review will be published asone issue of the Idaho Law Review each year.2 The goal of the AnnualReview is to publish a mix of issues arising in all of the communityproperty jurisdictions. We hope the articles will not only provide schol-arly analysis of community property issues but also focus on morepractical issues of interest to practitioners.Why another publication? Why don't the many publications al-ready devoted to family law provide an adequate forum for the discus-sion and analysis of community property issues?1. The Community Property Journal ceased publication in 1989. A survey of newcases and short articles was picked up by the publication Divorce Litigation. To date thelatter publication remains the only source of analysis and new developments in the areaof community property.2. The Annual. Review of Community Property Law is available as part of a regu-lar subscription to the Idaho Law Review. It may also be obtained through a specialsubscription to only that issue.IDAHO LAW REVIEWPart of the reason is that community property law involves issuesfar broader than what most would consider family law. Because pre-sent, vested interests in property are cr6ated during the existence of anon-going marriage, community property concepts can be important to-the resolution of issues arising from real estate transactions, creditor/debtor relationships, the organization and conduct of small business,wills and trusts, as well as divorce.In addition, many practitioners and scholars in non-communityproperty states tend to misunderstand community property (one of mycolleagues likes to quip that the only thing a lawyer has to know inorder to understand community property is how to divide by two) andview the community property as a foreign system of law having littlerelevance to them.3 The result is a sense that articles discussing com-munity property topics do not have broad appeal. Even within the''community property world" wide-ranging discussion of issues acrossthe jurisdictions is unusual. Only one casebook takes an overview ap-proach dealing with all the community property jurisdictions.4 Withinlaw schools, Community Property tends to be an orphan child of thecurriculum, bounced to each new faculty member. The Family LawCouncil formed in part to meet a need for a cross-jurisdictional analy-sis of community property issues.Finally, community property principles have had significant influ-ence on the law of property division on divorce in many non-commu-nity property jurisdictions. The most pervasive and importantinfluence of community property principles is the widespread accept-ance of the idea that property acquired or possessed during a marriageshould be shared between the spouses when the marriage is dissolved."Beyond general ideas of sharing, modern revisions of the property divi-sion at divorce statutes in many jurisdictions have imported commu-nity property principles. For example, in many non-communityproperty jurisdictions, divorce courts are required to divide property3. For an interesting discussion of this misunderstanding see, William Q. de Funiak& Michael J. Vaughn, Why Community Property is so Misunderstood-Knowing its Or-igins is the Key, 1 COMMUNITY PROP. J. 97, 100-03 (1975).4. WILLIAM A. REPPY, JR. & CYNTHIA SAMUEL, COMMUNITY PROPERTY IN THE UNITEDSTATES (3d ed. 1991).5. See Susan Westerberg Prager, Sharing Principles and the Future of MaritalProperty Law, 25 UCLA L. REV. 1 (1977); Elizabeth A. Cheadle, The Development ofSharing Principles in Common Law Marital Property States, 28 UCLA L. REV. 1269(1981). This sharing principal has been criticized as illusory, Bea Ann Smith, The Part-nership Theory of Marriage: A Borrowed Solution Fails, 68 TEx.L. REV. 689 (1990), andas unnecessary in light of the increasing participation of women in the workplace. MaryAnn Glendon, Is there a Future for Separate Property?, 8 FAM. L.Q. 315 (1974).[Vol. 28INTRODUCTIONinto marital property and separate property; the equitable divisionpowers of those courts only extend to property classified as maritalproperty. The definitions of marital property in these jurisdictions arevery similar to the definitions of community property, and the result inthe two types of jurisdictions at divorce is also similar.6This inaugural issue of the Annual Review will add to the profes-sional and scholarly literature in the area of Community Property inmany important ways. It contains articles of both professional andscholarly interest, covering issues, from a number of community prop-erty jurisdictions, that address the relationship between communityproperty principles and the law of non-community propertyjurisdictions.The professional articles in this issue involve analysis of a varietyof issues including the discussion of new developments in transmuta-tion principles in California,7 a detailed look at premarital agreementsand their treatment under the Uniform Premarital Agreements Actand California law,8 and an analysis of community property principlesin estate planning.9 Two of the student-authored articles focus onIdaho law and address questions involving improvements and the im-pact of resulting changes of ownership on third parties, and the divi-sion of community property in probate. Both articles attempt toprovide background on how these issues are dealt with by other com-munity property jurisdictions. A third student-authored article ad-dresses how each of the community property jurisdictions handlesproblems of migrating spouses at both divorce and death and proposesa uniform legislative approach to the problem.The Annual Review also contains a detailed survey of new cases.This year's survey covers cases from Washington, Wisconsin, Texas,and Idaho. The goal of the survey is a little different from most-it isnot to alert practitioners to new cases soon after they are decided.Other individual state publications and Divorce Litigation can performthis function much more efficiently than can the Annual Review. In-stead, the goal of the survey is to provide up-to-date, in-depth analysisof significant new cases with particular attention to how those casesaffect existing law and how they compare to similar developments in6. HOMER H. CLARK, JR., THE: LAW OF DoMEsTIc RELATIONS IN THE UNITED STATES591-92 (2d ed. 1988).7. Susan A. Channick, Estate of MacDonald: A Case for Logical over Literal Stat-utory Construction.8. Sarah Ann Smith, The Unique Agreements: Premarital and Marital Agree-ments, Their Impact upon Estate Planning, and Proposed Solutions to Problems Aris-ing at Death.9. Gary C. Randall, Estate Planning and Community Property.1991-921806 IDAHO LAW REVIEW [Vol. 28other jurisdictions. As part of the commitment of the Idaho Law Re-view to the quality of the survey, the assistance of expert practitionersfrom each of the Community Property states has been sought in identi-fying and analyzing the survey cases. These practitioners form the An-nual Review's Board of Contributors.

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