Community Property Part 2 Flashcards
PREMARITAL AGREEMENTS
Must be in writing and signed by both parties
No consideration necessary
- A premarital agreement that is signed by parents, proxies,
matchmakers, etc cannot enter into a premarital contract on behalf of one/both the spouses.
Permissible Premarital Agreements Subject Matter
- The parties’ rights and obligations over property acquired by either (or both) before or during marriage, including property in other jurisdictions.
- How property will be managed and controlled.
- How property will be disposed of in the event of separation, dissolution, or the death of a spouse.
- How property will be disposed of in the event of a contingency such as an inheritance, a windfall, the success (or failure) of a business, etc.
- Testamentary and trust matters.
- Life insurance matters.
- Choice of law matters, whether secular or religious (such as particular tracing methods and different apportionment methods).
- Any other matter not in violation of public policy or a statute imposing a criminal penalty.
Typically Unenforcable Premarital Agreements Subject Matter
- A term that requires one spouse to convert to the other spouse’s religion.
- A term that requires sexual performance in exchange for financial support or that exacts promises about sexual behavior.
- A term that promises money in exchange for virginity.
- Promises of a sum-certain lump sum settlement on divorce.
- Child support waivers, child custody agreements, and child visitation agreements.
- Any term that attempts to waive spousal support during marriage.
- Any term that attempts to waive the duty of good faith and fair dealing during marriage.
- Any term that promotes dissolution.
- Any post-dissolution spousal support provision that is unconscionable at the end of the marriage.
Premarital Agreement Subject Matter Generally
Terms that are readily quantifiable are easier for courts to interpret, and more likely to be enforced.
* For example: Non-quantifiable “Lifestyle” terms – such
as who will do the housework, whether any children of
the marriage will be allowed to engage in a given
activity, or what kind of car the parties will drive – are
more likely to be regarded as unenforceable at divorce
since there is no evident (monetizable) remedy for their
breach.
Burden of Proof for Premarital Agreement
- An enforceable premarital agreement is one that is based on fair disclosure and entered into voluntarily. When a proponent produces a premarital agreement that satisfies the basic formalities, the burden of proof shifts to the opponent to prove that the agreement (as a document) is either unconscionable or involuntary.
Premarital Contract Enforcement Issues: Unconscionability (Disclosure)
Before execution, all of the following applied to the party against whom
enforcement is sought:
1. Was not provided with a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
2. There was no voluntary, express waiver in writing of the right to disclosure, and
3. That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Premarital Contract Enforcement Issues: Voluntariness (Consent):
A premarital agreement was coerced unless the court finds:
1. The party against whom enforcement is sought was represented by independent legal counsel at the time of signing, or waived the right of representation in writing.
2. That there were not less than 7 calendar days between presentation of the agreement and signing.
3. There is no evidence of duress, fraud, undue influence, or incapacity.
-AND-
4. There are no other facts that raise questions of voluntariness.
The party against whom enforcement is sought bears the burden of proof. Non-English translations of all documents are required.
Waiving Post-Divorce Spousal Support
Current Law: Premarital agreements that were executed on or after January 1, 2002 may waive post-divorce spousal support. Two requirements:
1. A party who waives spousal support must be represented by separate and independent counsel for purposes of the premarital agreement.
- Later, at enforcement, the party against whom enforcement is sought can present evidence that the spousal support waiver is unconscionable (enforcement will leave that party eligible for public assistance).
- Further, the court can choose to not enforce a post-divorce spousal support waiver on voluntariness grounds. This is especially the case when the parties have a documented history of abuse on or near the execution date of the premarital agreement.
Defeating Spousal Support Waivers
The court can choose to not enforce a post-divorce spousal support waiver on voluntariness grounds. This is especially the case when the parties have a documented history of abuse on or near the execution date of the premarital agreement.
Consider when one spouse makes way more than the other who may be a homemaker. Could be unconsciable to support
Broad and expansive language used by the parties in their agreement forecloses the spouse from seeking any kind of spousal support, including temporary support.
ALTERING AGREEMENTS DURING MARRIAGE
- During marriage, a premarital agreement may be amended or revoked so long as the same formalities are followed. (in writing, both parties, separate lawyers if waiving spousal support, no unconsciability etc)
- In the original premarital agreement, parties can agree about events that might trigger amendment or revocation. Or, they can agree to a date after which the premarital agreement automatically becomes ineffective (i.e., “Upon our tenth wedding anniversary, this agreement will no longer be effective.”)
Equitable Estoppel Defense to Premarital Agreement
Premarital agreements can become so stale that the passage of time constitutes a form of contract. Generally, this would arise when the spouses develop expectations during the continuance of the marriage that are so different from the expectations upon which their premarital agreement was based that the failure to update the agreement itself is conduct that gives rise to an equitable contract defense.
REQUIRED UPDATES TO AGREEMENTS?
- Couples seem to be obligated to address any major changes in their circumstances. But it is not (yet) clear which party bears the legal burden of seeking updates.
- Statutes of limitations are tolled (paused) during marriage. Where a party seeks to enforce an otherwise valid but stale premarital agreement, the party who seeks to enforce should expect that the other party will raise equitable defenses.
TRANSMUTATION AGREEMENTS
- Formalities:
(i) Must be in writing and
(ii) demonstrate an express declaration that the character of property will be changed, and
(iii) signed by the spouse whose interest in the property is adversely affected. - No particular type of document or wording is necessary to effect a valid transmutation.
Express Declaration for Transmutation
A valid express declaration is an
(i) unambiguous statement of
(ii) present intent to
(iii) change the character of the asset in question
(iv) which is clear on its face.
TRANSMUTATION BY DEED
- Purchases made by a spouse from a third party and titled in one spouse’s name only do not contain an implicit declaration to change the character of the property. When a spouse uses CP funds to buy an item, by application of the tracing principle that item is CP, regardless of whether title was taken in one name only.
- A transmutation by grant deed can meet the formality requirements: a grant deed is in writing; the word “grant” on the face is an express declaration of the grantor’s intention to transfer the property to the grantee; and the deed is signed by grantor (the party who is adversely affected). The grant/conveyance language must be an unambiguous statement of present intent, whether in a sentence in a form or operative words in a deed, to change the character of the asset in question.
TRANSMUTATION AGREEMENTS GENERAL
- Duties Between Spouses: Spouses are held to general fiduciary duties of the highest good faith and fair dealing, and neither spouse may take any unfair advantage of the other. <– in lieu of the Premarital Agreement defenses
- Mutual Consent Required: Both spouses must agree to the same thing in the same sense. Mutual consent arises from words, deeds, and circumstances surrounding the transaction – outward expressions and communications that occur between the parties.
- Consent requires voluntariness (consent freely given) and full and fair disclosure (agreeing to the same thing in the same sense.)
(i) Fiduciary duties met
(ii) Mutual Consent
(iii) Voluntariness and agreement on the same thing in the same sense
Unfair Advantage in Bargained-for Exchanges (Transmutation)
The presumption of unfair advantage is only raised if there is proof that the benefitted spouse actually took any unfair advantage of the other spouse.
Unfair Advantage in Gratuitous Exchanges (Transmutation)
The presumption of undue influence is raised in favor of the adversely effected spouse as a matter of course. The rationale is that the beneficially affected spouse got something for nothing.
ie. Any gratuitous exchanges the benefitting spouse has burden of proof to show it wasn’t undue influence
TRANSMUTATION BY TRANSER
- A transmutation can be made by transfer (like, by a deed). Generally, all of the rules are the same except:
(i) Signing: A transmutation by deed from SP to CP is effective so long as only the adversely affected grantor-spouse signs.
(ii) Effective: The effective date of the transmutation is the date on which the transfer document is signed.
(iii)Typical real estate transaction rules apply, such as recording and notice requirements.
INTERSPOUSAL GIFTS (Transmutation)
Gifts of tangible property between spouses are exempt from the written formality requirements for transmutations if:
(i) The gift must be clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made. (No real property, cars, cash, or securities.)
(ii) The gift cannot be substantial in value taking into account the circumstances of the marriage.
Marital Privilege and Interspousal Torts
In a lawsuit involving a married person, a spouse has the privilege not to disclose confidential marital communications made by the other spouse. This includes not being required to testify against a spouse in a criminal proceeding, and not being called as an adverse witness against a spouse.
* The Evidence Code removes these privileges from interspousal tort claims and criminal proceedings where one spouse is charged with committing a crime against the other spouse.
INTERSPOUSAL TORT CLAIMS WHEN CAN THEY BE PURSUED + SoL
Interspousal tort claims may be pursued during marriage,
independent of a dissolution proceeding, or consolidated
with a pending dissolution. They may also be pursued
after a final judgment of dissolution.
- Statute of Limitations: Interspousal tort claims must be
filed within three years from the date of the last act of
domestic violence, or within three years from the date the
plaintiff discovers or reasonably should have discovered
that an injury or illness resulted from an action of domestic
violence by the defendant against the plaintiff.
INTERSPOUSAL TORT DAMAGES
All normal damages and relief allowed
Paying Damages: The tortfeasor’s SP is marshalled first. CP cannot be used without the written consent of the injured spouse, and only at the discretion of the judge.
Domestic Violence
Abuse that has or could be perpetuated against a:
- Spouse or former spouse.
- Cohabitant or former cohabitant. (A cohabitant is a person who regularly resides in the same household as the plaintiff.)
- Person with whom the respondent is having or has had a dating or engagement relationship.
- Person with whom the respondent has had a child.
- Child of a party.
- Any other person related by consanguinity or affinity within the second degree. (Affinity is the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other.)
DOES NOT HAVE TO BE PHYSICAL
Emergency Protective Order (EPO)
Can be requested by a police officer if there is an immediate and present danger of abuse, abduction, or stalking, with the purpose of preventing future acts of abuse, abduction, or stalking.
Generally, an EPO is more restrictive of the restrained person than is a party-initiated restraining or protective order: firearms and ammunition are automatically prohibited, and immediate exclusion from the residence can be ordered if the respondent lives with the petitioner.
Temporary Restraining Order (TRO)
One spouse may request a TRO against the other spouse. An ex parte
TRO may be issued on the same day as filed on proof of a past act or acts or abuse; again, with the purpose of preventing future acts of abuse. There is no time frame requirement for the past acts.
- A TRO can be issued without notice to the other spouse, but a copy of the TRO and hearing notice must be served on the responding spouse.
- The TRO is valid until the date of the hearing, which will be within 21 days.
DOMESTIC VIOLENCE PROTECTIVE ORDERS Process and Meaning
Hearing: The court will issue a restraining order if it finds reasonable proof of a past act or acts of abuse by the spouse being restrained.
* Abuse means:
* Intentionally or recklessly causing bodily injury.
* Sexual assault.
* Stalking.
* Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
* Destroying personal property.
* Annoying contact in person, or by mail or phone calls.
* Abusing a pet/animal.
* Financial abuse and impersonation.
DOMESTIC VIOLENCE PROTECTIVE ORDERS CAN RESTRAIN
What can be restrained:
* Personal conduct, including the management and control of property.
* Residence exclusion where the excluded party has assaulted/threatened assault, and would cause emotional harm if he/she remained.
* Exclusion from workplaces, schools, and vehicles.
* Temporary child custody.
* Firearm and ammunition possession and control.
* Control over cell phones and mobile devices.
* Changes to insurance coverage.
DV Order Restraint on Property
Restraints on Property: Spouses can be prevented from
transferring, encumbering, concealing, or disposing of real
and personal property, whether CP or SP.
DV Order Restraint on Finances
Financial Restraints: Victims of domestic abuse are more likely to stay in abusive relationships because of financial constraints. Spousal and child support may be ordered as a part of the restraining order process.
* At dissolution, there is a rebuttable presumption against ordering spousal support for a spouse who has been convicted of domestic violence. A finding of domestic violence can affect the restrained party’s child custody rights.
Recoveries under the Domestic Violence Prevention Act
Restitution: When a TRO is issued, restitution is given
for lost earnings and out-of-pocket expenses (medical
care, temporary housing, transportation, and child
support) related to the factual findings upon which the
TRO was granted. When the TRO is denied, the
respondent is owed restitution by the petitioner for out-
of-pocket expenses related to responding to the TRO.
WRONGFUL DEATH/HOMICIDE OF A SPOUSE
- Murder of a Spouse: A spouse who is convicted of murdering his/her spouse forfeits any CP interest in any retirement benefits.
- Wrongful Death: A spouse who causes his/her spouse’s death is not entitled to take under a will or trust, or through intestate succession.
<– Slayer statutes - The same applies to bonds, life insurance, and other contractual benefits.
- Joint Tenancy: A joint tenant who causes his/her joint tenant’s death has no right of survivorship.
Valid Marriage and Establishing the Community Estate
A valid marriage is a civil contract between two persons based on consent, the issuance of a license, and solemnization.
* There is no common law marriage or divorce is California.
Capacity: A person can consent to a marriage when he or she understands – in a lucid moment – the nature of the marriage contract, its duties, and its responsibilities.
Ceremony Requirements: No particular form for the ceremony of marriage is required… but the parties shall declare, in the physical presence of the person solemnizing the marriage and necessary witnesses, that they take each other as spouses. Family Code § 420
Common Law Divorce vs Marriage
If a couple validly contracts a common law marriage in one state, then moves to CA, CA will give full faith and credit to a common law marriage.
However, to divorce, only a final judgment of dissolution can restore the spouse’s status of single persons. Until they obtain a final dissolution judgment, neither can lawfully marry again in California.
Termination of Marriage
Marriage is dissolved only by one of the following:
* The death of one of the parties.
* A judgment of dissolution of marriage.
* A judgment of nullity of marriage.
No-fault divorce state
A divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences
The only two grounds for dissolution or legal separation
are irreconcilable differences and incurable insanity.
Definition of Irreconcilable Differences
Those differences which have caused the irremediable breakdown of the marriage. Irreconcilable differences refers to the existence of substantial marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and as to which there is no reasonable possibility of elimination, correction, or resolution.
Definition of Incurable Insanity
A condition that requires proof, including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.
Does not relieve a spouse of support obligations.
