5. Agreement & Conduct

Question 1

What are the examples of transmutation by conduct?

Answer 1

1) Mortgage Payments
2) Feathering own nest (own SP + CP improvements) fixtures doctrine = become SP - can ask for community reimbursement greater of cost or enhanced value
3) Community Funds used by one spouse for improvements to other spouse’s SP = gift (reimbursement for greater of cost or enhanced value)

Question 2

Pre Marital Agreements

Answer 2

Okay to opt out of statute. In writing & signed by both.

Exception for oral agreements if conduct is consistent with existence can take it out of the Statute of Frauds.

Allegations of detrimental reliance admissible as evidence, for jury to determine credibility and whether the other spouse should be estoppel from denying it.

Question 3

Transmutations

Answer 3

Transmutations: agreement to change form of property (e.g. CP to SP)

Pre-1985 → oral permitted

Post 1/1/85 → must be in writing, signed by the party whose interests affected, expressly declaring ownership change.

Gift exemption: tangible, personal & used solely by them (e.g. watch) and not of substantial value (considered against entire community)

Question 4

What can be included in a pre-marital agreements?

Answer 4

Cannot limit child support (against public policy).

Waiver/limitation of spousal support only unenforceable if not represented by independent legal counsel OR court determines unconstitutional at time of ENFORCEMENT/divorce. Consider - would it result in their being destitute, in context if economic situation.

Question 5

How are mortgage payments during a marriage dealt with?

Answer 5

Moore Rule:

Appreciation Fraction: CP to reduce debt OVER original purchase price

multiplied by

Appreciation: Current market value less original purchase price.

Note: doesn’t include interest, taxes or insurance.

Question 6

SP used for living expenses?

Answer 6

Presumed a gift.

But if CP available, presume used to the extent available (“family expenses presumption”)