Altering the Character of Assets by Agreement

Question 1

Transmutation

Answer 1

an agreement made during a marriage to change an asset from one type to another.

Can be by gift or agreement.

no consideration is required for premarital agreement or during marriage.

Question 2

Premarital Agreements

Answer 2

Must be in writing SIGNED by both parties.

Exceptions
1. Oral agreements that are fully performed. Marriage alone is insufficient though

2. Estoppel based on detrimental reliance

can agree to anything except limiting kid support

Question 3

defenses to premarital agreement

Answer 3

1. oral.
2. not signed voluntary
3. uconsionability

Question 4

involuntary premarital agreement

Answer 4

Test - not voluntar unless court finds that party challenging the agreement:

1. was represnted by independent legal counse at time of writing AND
2. was given at lesat 7 days to sign; AND
3. if not represented by counsel, was fully informed in writing of terms and basic effect.

Question 5

Unconscionability and premarital agreements

Answer 5

1. spousal support - case made that you can waive spousal support but CA statute requires
   a. the waiver of spousal support can be unenforceable on one of two grounds.
   a. 1. party chalelngin was not represented by counsel at time of signing OR
   a. 2. provision is unconsionable at time of enforcement (even if had legal counsel then)

ANYTHING ELSE - unenforceable if UNCONSIONABLE WHEN MADE AND (i) no full and fair disclosure of other party’s property or finacnial obligations, (ii) right to disclosue not waived in writing and (iii) party challenging had no adequate knowledge of other party’s property or financial sircumstnaces.

Question 6

transmutations

Answer 6

oral used to be okay

now must be

1. in writing
2. signed by spouse whose interest is adversely affected and
3. mus explicitly state that a chagne in ownership is being made

usual exceptions to writing requiremnet (estoppel, partial performacne, SOF) do not apply

ONLY EXCEPTION - gifts of tangible peorpety of apersonal nature hwich are not “substantial in value taking in to account the circumstnaces of the marriage”

Question 7

evidence for transmutations

Answer 7

can’t use wills