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Old December 14, 2012, 06:59 PM   #51
Don H
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Does the federal government agree that state community property laws trump federal firearm laws? I don't think I'd care to be the test case on that.
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Old December 14, 2012, 08:13 PM   #52
Frank Ettin
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Originally Posted by Don H
Does the federal government agree that state community property laws trump federal firearm laws?
It's not a question of trumping federal law.

The ATF views lying on the 4473 about who the actual purchaser of the gun is to be a straw purchase. The real crime, however, is making a false statement on the 4473.

Whose money is used to buy the gun basically determines who the actual purchaser is, and whose money it is will be determined by state law, especially with regard to the property of a married couple.

In States which have a community property system, all property acquired by either spouse (with certain exceptions) is considered the property of the community and jointly owned by both spouses. A community property system of marital property is found in a minority of States.

Things could get more complicated in the majority of States which have a common law system of marital property. Under the common law system of marital property, the property acquired by each spouse remains separate property unless specifically held jointly. Of course, money held in a joint bank account will generally be considered the joint property of both spouses even in common law marital property States.
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Old December 14, 2012, 08:34 PM   #53
Don H
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Frank, are you saying that in a community property state both spouses would have to complete the 4473 because thay are both, in essence, buying the firearm?
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Old December 14, 2012, 08:48 PM   #54
Frank Ettin
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Originally Posted by Don H
Frank, are you saying that in a community property state both spouses would have to complete the 4473 because thay are both, in essence, buying the firearm?
No, they aren't. If I write a check on our (my wife's an my) bank account, I'm using my money. If she writes a check on that same bank account, she's using her money.
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Old December 15, 2012, 11:40 AM   #55
AH.74
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No, they aren't. If I write a check on our (my wife's an my) bank account, I'm using my money. If she writes a check on that same bank account, she's using her money.
This contradicts what you just said before- and according to my knowledge (I live in a community property state and just completed a family law class in which this topic was extensively discussed), the question asked by Don is essentially yes. They don't both have to fill out the form, but they are both becoming owners of the community property- in this case the gun.

In a community property state, your example above is incorrect. A joint account is community property- therefore whether you or your wife spend the money, the money is community property and anything bought with it is also community property.

One way to make an exception is if something is specifically agreed upon in writing to be separate property. Therefore, according to your above example, the accounts would have to be separate and accessible to only that one spouse whose separate property it is.
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Old December 15, 2012, 12:47 PM   #56
Frank Ettin
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Originally Posted by AH.74
...One way to make an exception is if something is specifically agreed upon in writing to be separate property....
But another way to make an exception is simply from the conduct of the parties and the context of the transaction.

And the point of my example is that both spouses have equal dominion and control of community assets and are free to use community assets independent of each other. Property purchased with community assets is indeed community property, but the parties may, by their conduct show an understanding that a particular item of community property is for the exclusive use of one spouse, or is intended as a gift to one spouse by the community.

And the point here is that a gun purchased by one spouse using community funds is not a straw purchase because the other spouse may have in interest int the funds.

It's very nice that you've taken a family law class. How long have you practiced law?
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Old December 15, 2012, 02:18 PM   #57
AH.74
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I'm glad the subject came up as I had thought of mentioning it but didn't want to muddy the waters with state law. It is an interesting little twist though.

I'm not an attorney- just some continuing education.
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Old December 15, 2012, 03:08 PM   #58
Frank Ettin
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Originally Posted by AH.74
...just some continuing education.
Good for you. We need to keep learning.

And thanks for reminding me that I have a few more units to pick up to satisfy my continuing education requirements. Fortunately, I can do it on-line.
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