7) Changing Ch of Property by Agreement Flashcards
changing ch of property: ways
1) global premarital agreement
2) asset-by-asset agreements
changing ch of property: effect
CA CP rules no longer apply
premarital agreement: def
agreement between prospective spouses, in contemplation of marriage and effective upon marriage
premarital agreement: reqs
if on or after 1/1/86
1) must be in writing
2) signed by both parties
premarital agreement: how amend or revoke
if made post 1/1/86
only by written agreement
signed by both
premarital agreement: rship to k law
generally must follow, but dnn consideration
premarital agreement: exception to writing requirement
- -partial performance, if party “irretrievably” changed position
- -promissory estoppel
premarital agreement: scop
parties can k re almost anything
- -including making a will re carrying out the agreement
- -inc re life insurance policy
- -ok alter rights/obligations re either party – property whenever and wherever acquired, rights to manage
premarital agreement: CANT include
- -against pub policy or illegal
- -can’t waive child support (but ok waive spousal)
marriage void: effect on PM agreement
enforceable only to the extent necessary to avoid an inequitable result
defenses to enforcement of PM agreement
1) did not execute voluntarily
2) unconscionable when executed
voluntariness defs
1) 1986-2001
2) post 2002
(dated by when agt drafted)
voluntariness factors: 1986-2001
1) amt of x btwn agt + wedding
2) surprise?
3) counsel or opportunity
4) inequality bargaining power
5) disclosure
6) understood nature/effect
voluntariness factors: post 2002
Voluntary = no fraud, coercion, lack of knowledge at time of signing
NOT voluntary unless expressly finds:
1) had indep counsel or waived in writing
2) had 7+ days AND
3) fully advised in writing of all rights/obligations that attach
unconscionability: in general
unenforceable if unconscionable WHEN MADE.
Factors:
1) no full/fair disclosure of other party’s property/obligations
2) right to disclosure not waived in writing
3) party challenging had no adequate knowledge or reasonable opportunity to get
unconscionability: re spousal support
IS unenforceable to waive spousal support, unless:
1) rep’d by counsel AND
2) not unconscionable at time of ENFORCEMENT
transmutation: def
agreement btwn spouses to change the ch of a particular asset
transmutation rule: pre 1985
ok oral or written, express or implied
transmutation rule: post 1/1/85
1) must be in writing
2) signed by spouse whose interest adversely affected
3) express declaration: must explicitly state change in ch of ownership is being made
transmutation rule: SOF exceptions apply?
no! so no estoppel, no part performance
transmutation: relevant date
of the transmutation (not the acquisition)
transmutation rule: exception
gift exclusion
gift exclusion: rule
gifts btwn spouses and:
1) tangible personal property for the personal use of recipient spouse
2) gift not of substantial value, as measured against lifestyle of parties
analysis of property
1) initial ch (presumptive CP if acquired during marriage)
2) valid transmutation?
3) gift exception?
transmutation and wills: rule
statement in a will can transmute
BUT not admissible as evidence of transmutation before the death of the spouse who made the will (so can’t use in a divorce)
transmutaiton and trusts
trust can be the written statement that transmutes, but not enough to just put it in a trust
ok use in a divorce (unlike wills)
spouse’s fiduciary duties to each other
presumption of undue influence arises if there is an UNFAIR advantage in te transmutaiton
transmutation and creditors
can’t use them to defraud/evade
