What IS community property?

by leevin on August 26, 2017

When I ask a potential client or client to identify community property, it’s very common to hear someone say: “Well, I did buy a car while we married, but it’s only in my name.” Although this may seem like common sense that if a car or home is only in one person’s name that they own it, that is not how Guam law defines community property.

Under Guam law, all property acquired during the marriage is presumed to be community property. (You can read the specific statute here). This means that if you buy a car or home while you are married, there is a presumption that it is community property and subject to division in a divorce case regardless of whether it’s only in one person’s name.

A related question is: what is “separate property?” I will address the most common examples of separate property in a separate entry.

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Short Summary: The doctrine of sovereign immunity bars the award of attorney fees against the Government of Guam except under very limited and specific circumstances.

Analysis: A unanimous Supreme Court of Guam extended its holding from an earlier decision that parties who win cases against Government of Guam agencies are barred from being awarded attorney fees by the doctrine of sovereign immunity. In Gange v. Gov’t of Guam, 2017 Guam 2 (Opinion available here), the court was asked to apply its decision in Bautista v. San Agustin, 2015 Guam 23 (Opinion available here), which held that sovereign immunity barred an award of attorney fees against the Government of Guam Retirement Fund.

In Bautista, the plaintiff asked the court to award him attorney fees in a case that he had won against the Retirement Fund. The Court started with the general rule that the Government of Guam “enjoys broad sovereign immunity” which have only been waived in specific circumstances. The Court then addressed whether (1) there was a statutory basis for an award of attorney fees; and (2) whether equity required an award of attorney fees. The Court found that none of those grounds supported an award of attorney fees.

More directly related to the issue in Gange, the Court addressed two other issues: (3) whether the doctrine of sovereign immunity did not apply because the Retirement Fund was acting in a “proprietary” instead of government function; and (4) whether the Court could award attorney fees because the Retirement Fund held private funds.

The Court rejected the plaintiff’s argument that the Retirement Fund was performing a “proprietary function.” “Proprietary functions are those conducted in the government’s private capacity, for the benefit of only of those within its corporate limits, and not as an arm of the government.” Bautista, 2015 Guam 23 ¶ 34. The Court looked at 3 factors: (1) whether the action taken was expressly authorized by statute; (2) whether the action was necessary for the government entity to perform its duties; and (3) whether the government entity fulfilled a government purpose. Applying those factors, the Court held that the Retirement Fund was performing a governmental function and, therefore, the doctrine of sovereign immunity applied.

Finally, the Court rejected the plaintiff’s argument that the award of attorney fees was appropriate under the “common fund” exception to sovereign immunity. The general theory was that the Retirement Fund held money that belonged to its participants, not public funds. The Court noted that there was a split in authority from a Colorado Supreme Court decision and federal cases. The Court ultimately adopted the federal position that the doctrine of sovereign immunity applied regardless of if the funds were “public funds” as long as the government was in possession of the funds.

In Gange, the Court was asked to decide whether its holding in Bautista also barred an award of attorney fees against the Guam Ancestral Lands Commission. The Court held that there was no express waiver of sovereign immunity against the Ancestral Lands Commission and that none of the other exceptions to sovereign immunity – the common fund doctrine and the performance of a proprietary function – applied in Gange. Based on a fairly straight-forward application of its holding in Bautista, the Court concluded that the plaintiffs could not be awarded attorney fees against the Ancestral Lands Commission.

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How do I find out how much a piece of property on Guam is worth for probate purposes?

December 14, 2016

In my last blog post I gave explained that Guam law sets probate fees based on the total value of the estate assets. A follow-up question that I have received is, “How do I find out how much real property is worth so I can come up with an estimate?” The easiest and arguably most […]

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How much does probate cost on Guam?

August 23, 2013

One of the most common questions anyone has when starting the probate process is, “How much will it cost?” There are 2 types of expenses to think about: (1) costs and (2) fees. Probate Costs In order to comply with Guam probate law, the administrator is required to give notice to heirs and creditors.  The […]

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Divorce on Guam when the other party is not a resident

July 30, 2013

Before a court on Guam can grant a divorce, the plaintiff or person asking for a divorce must establish at a minimum that they meet the residency requirements under Guam law.  This means that the person requesting the divorce has either (1) been physically on Guam for 90 days or more or (2) the matter […]

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My significant other cheated on me: Can I get sole custody over our child?

January 25, 2012

A common question I get is whether a party going through a divorce or custody dispute can get “sole custody” because the other party is a “cheater.”  Although an act of adultery under Guam law gives courts the discretion to award community property and debt as the court sees fit, the affect of an affair […]

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Jurisdiction over Child Custody Disputes on Guam

December 25, 2011

As discussed in a previous post, Guam law allows for people to obtain a “consent divorce” if one of them has been physically on Guam for at least seven (7) days.  While this may be true for distributing property and debt, Guam law governing awarding child custody has different legal requirements. Guam has enacted the […]

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Division of Community Property in a Guam Divorce

November 30, 2011

Under Guam law, if you are granted a divorce on any grounds other than adultery and extreme cruelty”the community property shall be equally divided between the parties.”   19 GCA 8411.  What does it mean to “equally” divide community property? In the case of Sinalao v. Sinalao, 2005 Guam 24, the Supreme Court of Guam […]

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Residency Requirements for a Divorce on Guam

November 9, 2011

In order to file for a divorce on Guam, at least one person needs to be a “resident” of Guam. The “residency” requirements forpurposes of a divorce depends on whether your divorce will be contested or uncontested. If your case is an “uncontested divorce,” or one where both parties agree to all terms of the […]

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