Altering Statutory Rights by Agreement

Question 1

Premarital agreements that modify CP statutory rights.

Answer 1

The statutory property rights of H and W may be altered by a premarital agreement made in good faith. For a pre-nuptial agreement to be valid, after 1985 it must be in writing and signed by both parties unless there has been substantial performance or reliance.

Question 2

Writing requirement and other requirements.

Answer 2

After 2001, the spouse receiving and signing onto the agreement must also: (1) receive complete financial information about the other party prior to signing it;
(2) be given at least seven days to review the agreement before signing it with the opportunity to have it reviewed by an attorney; and
(3) may be represented by a separate attorney (other than the one representing the other spouse) even if he or she has received (and signed an affidavit) detailed information about the terms & obligations of the agreement.

Question 3

Agreements and actions during marriage that modify CP rights by transmutation of property.

Answer 3

Prior to 1/1/85, contribution of SP to a community asset was presumed to be a gift to the community (per Lucas).

After that date, under anti-Lucas legislation, a signed writing is required to alter the nature of the property. At divorce, the SP contributor is entitled to flat reimbursement under § 2640(c).

Question 4

Aufmuth agreement

Answer 4

SP contributor to a community property asset can make an Aufmuth agreement with other spouse to preserve SP share as a proportionate interest in the asset.