Altering Character of Assets By Agreement Flashcards
Agreeing to change the characterization of an asset during the marriage is called? How?
Transmutation
By Gift or by Agreement
Premarital agreements formalities; what exceptions?
Premarital agreements must be in writing, signed by both parties. Oral agreements are invalid.
Exceptions: Where oral agreement is fully performed (agreeing to marry isn’t enough, look at all parties performing)
Estoppel based on detrimental reliance
What can parties NOT agree to in premarital arrangement?
either party’s contributions to child support later.
Defenses to premarital agreements?
presumed not signed voluntarily UNLESS: given independent legal counsel at time of signing (or waived in separate writing); given at least 7 days to sign; and if no counsel was fully informed in writing of terms/affect of agreement.
Defense 2: Unconscionability: Spousal support = party challenging NOT repped by independent counsel at time signed OR provision is unconscionable at time of signing.
Defense to premarital agreement: Unconscionable:
2 areas: spousal support and those involving anything else.
Spousal support = party challenging NOT repped by independent counsel at time signed OR provision is unconscionable at time of signing.
Anything else = unconscionable when made and no disclosure of other party’s debts, no waiver of the disclosure, and no knowledge of other party’s property/finances
deciding premarital agreements who decides?
it is a matter of LAW, not for jury but for court
Changes to property classification during marriage called what? What are the formality requirements?
Transmutations: Before 1985 oral transmutations were chill
After 1985: Must be in WRITING 2, SIGNED by spouse whose interest is adverse; 3)EXPLICITLY STATES change in ownership being made
What evidence can be used to show valid transmutations? (what can’t be used)
separate writings showing transmutations okay, but statements made in wills or trusts can’t be used
