7) Changing Ch of Property by Agreement

Question 1

changing ch of property: ways

Answer 1

1) global premarital agreement

2) asset-by-asset agreements

Question 2

changing ch of property: effect

Answer 2

CA CP rules no longer apply

Question 3

premarital agreement: def

Answer 3

agreement between prospective spouses, in contemplation of marriage and effective upon marriage

Question 4

premarital agreement: reqs

Answer 4

if on or after 1/1/86

1) must be in writing
2) signed by both parties

Question 5

premarital agreement: how amend or revoke

Answer 5

if made post 1/1/86
only by written agreement
signed by both

Question 6

premarital agreement: rship to k law

Answer 6

generally must follow, but dnn consideration

Question 7

premarital agreement: exception to writing requirement

Answer 7

• -partial performance, if party “irretrievably” changed position
• -promissory estoppel

Question 8

premarital agreement: scop

Answer 8

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

Question 9

premarital agreement: CANT include

Answer 9

• -against pub policy or illegal

- -can’t waive child support (but ok waive spousal)

Question 10

marriage void: effect on PM agreement

Answer 10

enforceable only to the extent necessary to avoid an inequitable result

Question 11

defenses to enforcement of PM agreement

Answer 11

1) did not execute voluntarily

2) unconscionable when executed

Question 12

voluntariness defs

Answer 12

1) 1986-2001
2) post 2002
(dated by when agt drafted)

Question 13

voluntariness factors: 1986-2001

Answer 13

1) amt of x btwn agt + wedding
2) surprise?
3) counsel or opportunity
4) inequality bargaining power
5) disclosure
6) understood nature/effect

Question 14

voluntariness factors: post 2002

Answer 14

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

Question 15

unconscionability: in general

Answer 15

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

Question 16

unconscionability: re spousal support

Answer 16

IS unenforceable to waive spousal support, unless:

1) rep’d by counsel AND
2) not unconscionable at time of ENFORCEMENT

Question 17

transmutation: def

Answer 17

agreement btwn spouses to change the ch of a particular asset

Question 18

transmutation rule: pre 1985

Answer 18

ok oral or written, express or implied

Question 19

transmutation rule: post 1/1/85

Answer 19

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

Question 20

transmutation rule: SOF exceptions apply?

Answer 20

no! so no estoppel, no part performance

Question 21

transmutation: relevant date

Answer 21

of the transmutation (not the acquisition)

Question 22

transmutation rule: exception

Answer 22

gift exclusion

Question 23

gift exclusion: rule

Answer 23

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

Question 24

analysis of property

Answer 24

1) initial ch (presumptive CP if acquired during marriage)
2) valid transmutation?
3) gift exception?

Question 25

transmutation and wills: rule

Answer 25

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)

Question 26

transmutaiton and trusts

Answer 26

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)

Question 27

spouse’s fiduciary duties to each other

Answer 27

presumption of undue influence arises if there is an UNFAIR advantage in te transmutaiton

Question 28

transmutation and creditors

Answer 28

can’t use them to defraud/evade