Phone: (805) 845-5405 E: info@mysantabarbaralawyer.com

FAMILY CODE SECTION 1100-1103

1100. (a) Except as provided in subdivisions (b), (c), and (d) and
Sections 761 and 1103, either spouse has the management and control
of the community personal property, whether acquired prior to or on
or after January 1, 1975, with like absolute power of disposition,
other than testamentary, as the spouse has of the separate estate of
the spouse.
(b) A spouse may not make a gift of community personal property,
or dispose of community personal property for less than fair and
reasonable value, without the written consent of the other spouse.
This subdivision does not apply to gifts mutually given by both
spouses to third parties and to gifts given by one spouse to the
other spouse.
(c) A spouse may not sell, convey, or encumber community personal
property used as the family dwelling, or the furniture, furnishings,
or fittings of the home, or the clothing or wearing apparel of the
other spouse or minor children which is community personal property,
without the written consent of the other spouse.
(d) Except as provided in subdivisions (b) and (c), and in Section
1102, a spouse who is operating or managing a business or an
interest in a business that is all or substantially all community
personal property has the primary management and control of the
business or interest. Primary management and control means that the
managing spouse may act alone in all transactions but shall give
prior written notice to the other spouse of any sale, lease,
exchange, encumbrance, or other disposition of all or substantially
all of the personal property used in the operation of the business
(including personal property used for agricultural purposes), whether
or not title to that property is held in the name of only one
spouse. Written notice is not, however, required when prohibited by
the law otherwise applicable to the transaction.
Remedies for the failure by a managing spouse to give prior
written notice as required by this subdivision are only as specified
in Section 1101. A failure to give prior written notice shall not
adversely affect the validity of a transaction nor of any interest
transferred.
(e) Each spouse shall act with respect to the other spouse in the
management and control of the community assets and liabilities in
accordance with the general rules governing fiduciary relationships
which control the actions of persons having relationships of personal
confidence as specified in Section 721, until such time as the
assets and liabilities have been divided by the parties or by a
court. This duty includes the obligation to make full disclosure to
the other spouse of all material facts and information regarding the
existence, characterization, and valuation of all assets in which the
community has or may have an interest and debts for which the
community is or may be liable, and to provide equal access to all
information, records, and books that pertain to the value and
character of those assets and debts, upon request.

1101. (a) A spouse has a claim against the other spouse for any
breach of the fiduciary duty that results in impairment to the
claimant spouse’s present undivided one-half interest in the
community estate, including, but not limited to, a single transaction
or a pattern or series of transactions, which transaction or
transactions have caused or will cause a detrimental impact to the
claimant spouse’s undivided one-half interest in the community
estate.
(b) A court may order an accounting of the property and
obligations of the parties to a marriage and may determine the rights
of ownership in, the beneficial enjoyment of, or access to,
community property, and the classification of all property of the
parties to a marriage.
(c) A court may order that the name of a spouse shall be added to
community property held in the name of the other spouse alone or that
the title of community property held in some other title form shall
be reformed to reflect its community character, except with respect
to any of the following:
(1) A partnership interest held by the other spouse as a general
partner.
(2) An interest in a professional corporation or professional
association.
(3) An asset of an unincorporated business if the other spouse is
the only spouse involved in operating and managing the business.
(4) Any other property, if the revision would adversely affect the
rights of a third person.
(d) (1) Except as provided in paragraph (2), any action under
subdivision (a) shall be commenced within three years of the date a
petitioning spouse had actual knowledge that the transaction or event
for which the remedy is being sought occurred.
(2) An action may be commenced under this section upon the death
of a spouse or in conjunction with an action for legal separation,
dissolution of marriage, or nullity without regard to the time
limitations set forth in paragraph (1).
(3) The defense of laches may be raised in any action brought
under this section.
(4) Except as to actions authorized by paragraph (2), remedies
under subdivision (a) apply only to transactions or events occurring
on or after July 1, 1987.
(e) In any transaction affecting community property in which the
consent of both spouses is required, the court may, upon the motion
of a spouse, dispense with the requirement of the other spouse’s
consent if both of the following requirements are met:
(1) The proposed transaction is in the best interest of the
community.
(2) Consent has been arbitrarily refused or cannot be obtained due
to the physical incapacity, mental incapacity, or prolonged absence
of the non-consenting spouse.
(f) Any action may be brought under this section without filing an
action for dissolution of marriage, legal separation, or nullity, or
may be brought in conjunction with the action or upon the death of a
spouse.
(g) Remedies for breach of the fiduciary duty by one spouse,
including those set out in Sections 721 and 1100, shall include, but
not be limited to, an award to the other spouse of 50 percent, or an
amount equal to 50 percent, of any asset undisclosed or transferred
in breach of the fiduciary duty plus attorney’s fees and court costs.
The value of the asset shall be determined to be its highest value
at the date of the breach of the fiduciary duty, the date of the sale
or disposition of the asset, or the date of the award by the court.
(h) Remedies for the breach of the fiduciary duty by one spouse,
as set forth in Sections 721 and 1100, when the breach falls within
the ambit of Section 3294 of the Civil Code shall include, but not be
limited to, an award to the other spouse of 100 percent, or an
amount equal to 100 percent, of any asset undisclosed or transferred
in breach of the fiduciary duty.

1102. (a) Except as provided in Sections 761 and 1103, either
spouse has the management and control of the community real property,
whether acquired prior to or on or after January 1, 1975, but both
spouses, either personally or by a duly authorized agent, must join
in executing any instrument by which that community real property or
any interest therein is leased for a longer period than one year, or
is sold, conveyed, or encumbered.
(b) Nothing in this section shall be construed to apply to a
lease, mortgage, conveyance, or transfer of real property or of any
interest in real property between spouses.
(c) Notwithstanding subdivision (b):
(1) The sole lease, contract, mortgage, or deed of the husband,
holding the record title to community real property, to a lessee,
purchaser, or encumbrancer, in good faith without knowledge of the
marriage relation, shall be presumed to be valid if executed prior to
January 1, 1975.
(2) The sole lease, contract, mortgage, or deed of either spouse,
holding the record title to community real property to a lessee,
purchaser, or encumbrancer, in good faith without knowledge of the
marriage relation, shall be presumed to be valid if executed on or
after January 1, 1975.
(d) No action to avoid any instrument mentioned in this section,
affecting any property standing of record in the name of either
spouse alone, executed by the spouse alone, shall be commenced after
the expiration of one year from the filing for record of that
instrument in the recorder’s office in the county in which the land
is situated.
(e) Nothing in this section precludes either spouse from
encumbering his or her interest in community real property, as
provided in Section 2033, to pay reasonable attorney’s fees in order
to retain or maintain legal counsel in a proceeding for dissolution
of marriage, for nullity of marriage, or for legal separation of the
parties.

1103. (a) Where one or both of the spouses either has a conservator
of the estate or lacks legal capacity to manage and control
community property, the procedure for management and control (which
includes disposition) of the community property is that prescribed in
Part 6 (commencing with Section 3000) of Division 4 of the Probate
Code.
(b) Where one or both spouses either has a conservator of the
estate or lacks legal capacity to give consent to a gift of community
personal property or a disposition of community personal property
without a valuable consideration as required by Section 1100 or to a
sale, conveyance, or encumbrance of community personal property for
which a consent is required by Section 1100, the procedure for that
gift, disposition, sale, conveyance, or encumbrance is that
prescribed in Part 6 (commencing with Section 3000) of Division 4 of
the Probate Code.
(c) Where one or both spouses either has a conservator of the
estate or lacks legal capacity to join in executing a lease, sale,
conveyance, or encumbrance of community real property or any interest
therein as required by Section 1102, the procedure for that lease,
sale, conveyance, or encumbrance is that prescribed in Part 6
(commencing with Section 3000) of Division 4 of the Probate Code.