Jointly Owned Property and Transmutation

Question 1

Prenuptial Agreements (Rule)

Answer 1

Agreements made before marriage (prenuptial agreements) do not require consideration, but they must be in writing signed by both parties to satisfy the Statute of Frauds. Premarital agreements will not be enforced if they “promote divorce.”

Question 2

Enforceability of Prenuptial Agreements

Answer 2

An agreement is not enforceable if it was not entered into voluntarily. It was voluntary if:

(1) the party against whom enforcement is sought was represented by independent counsel, or expressly waived that requirement;
(2) at least seven days before execution, the agreement is presented to the party and the party is advised to seek independent counsel; and
(3) if unrepresented, the party is (a) fully informed in writing of the terms of the agreement and the rights she would be giving up, and (b) was proficient in the language of the agreement and the explanation, and (c) the agreement was not executed under duress, fraud, or undue influence.

Question 3

Alternate Way of Setting Aside Prenups

Answer 3

Alternatively, a party could set aside a prenuptial agreement that is unconscionable when executed and the party did not and could not have had adequate knowledge of the wealth of the other party, and didn’t waive her right to disclosure of such wealth.

Question 4

Agreements During Marriage

Answer 4

Pre-1985 the agreemen can be done orally. Post-1985 the agreement must be in writing in the form of an express declaration. It must expressly state a change in the characterization or ownership of the property is intended and must be made. A separate, express declaration must be made.

Question 5

Jointly Held Property

Answer 5

When spouses acquired title in joint form during their marriage, all jointly held property, including property held in joint tenancy, is presumed community property at divorce (but not on death) unless the parties executed a collateral written agreement or a separate statement in the documentary evidence of title that the property is separate and not community property.

If property is acquired in joint tenancy before 1985, the property retains its joint character and is treated as separate property.