Pg 8

Question 1

How would a premarital agreement be unconscionable at the time of its execution?

Answer 1

If the party didn’t get fair and reasonable disclosure about something important such as the other party’s wealth. This happens when the party didn’t have or reasonably couldn’t have had adequate knowledge of the property or financial obligations of the other party.

Question 2

If the court decides that a premarital agreement is unconscionable, what happens to it?

Answer 2

It is void

Question 3

Are spouses allowed to waive the right to spousal support or property rights under a premarital agreement?

Answer 3

– in the nation: yes, unless it makes one party so destitute that they require public assistance
– in California: cannot get a spousal support waiver

Question 4

Can there be a transmutation during a marriage?

Answer 4

Yes, the spouses can change the status of any property presently owned or later acquired

Question 5

What are the two critical time periods with regard to a transmutation that happens during a marriage?

Answer 5

– before January 1 of 1985

– after January 1 of 1985

Question 6

If there is a transmutation during the course of the marriage, what is the critical date?

Answer 6

The date of mutation, not the date the property was acquired

Question 7

What is required for a transmutation that happens during a marriage prior to January 1 of 1985?

Answer 7

No formal requirement for a property agreement to be made during the marriage. Informal oral agreements are enforcible if there was sufficient evidence to prove them. Very simple to change from SP to CP or vice versa through a conversation or act

Question 8

What is required for a transmutation to occur during a marriage on or after January 1 of 1985?

Answer 8

Must be:

• in writing
• by express declaration
• signed by the party that is giving up the property rights
• include language that expressly states a change in character or ownership of the property is happening

Question 9

What is the exception for the rules regarding transmutation during marriage when it is a gift between spouses?

Answer 9

There’s no need for a writing if a transmutation agreement involves the following:
– a gift between spouses
– of clothes, jewelry, wearing apparel, or other tangible articles of a personal nature
– used solely or principally by the recipient spouse
– gift is not substantial in value considering the circumstances of the marriage

Question 10

What is the rationale behind the gifts between spouses exception to the transmutation rules during marriage?

Answer 10

This is meant to reduce litigation, to discourage perjury, to give greater certainty.

Question 11

What things are not admissible on divorce as evidence of transmutation?

Answer 11

– a change in ownership due to commingling

– statements in wills

Question 12

What are presumptions?

Answer 12

Conclusions that the law requires to be drawn in the absence of contrary evidence as long as some other facts are provided or established.

Question 13

Always ask what question after you’ve gone through source and actions?

Answer 13

If there are any presumption that would change the characterization

Question 14

What is the rationale for presumptions?

Answer 14

Some facts are so likely to be true and so unlikely to be disputed that the law requires them to be assumed in the absence of contrary evidence.

Question 15

What are the things that are possible for presumptions?

Answer 15

They are either conclusive and the court is required to find the presumed fact regardless of the strength of the evidence, or they are rebuttable

Question 16

What do presumptions do to the burden of proof?

Answer 16

They shift it to the other party

Question 17

What is an example of a presumption?

Answer 17

Presumption that a mailed letter was received

Question 18

What is the basic CP presumption?

Answer 18

All property acquired during marriage is presumed to be CP

Question 19

How do you overcome the basic CP presumption?

Answer 19

By clear and satisfactory proof that it is SP

Question 20

If title is in one spouse’s name alone, does that rebut a presumption that the property gotten during the marriage is CP?

Answer 20

No

Question 21

What are the ways that you can rebut a presumption?

Answer 21

By tracing or by agreement

Question 22

How do you use tracing to rebut a presumption?

Answer 22

If one spouse can trace the asset to an SP source, that rebuts the presumption that the property is CP

Question 23

How do you rebut a presumption through an agreement?

Answer 23

Parties can make an agreement that assets acquired during marriage are not CP, but are instead SP.

Question 24

What are the form of title presumptions?

Answer 24

• Joint form
  – husband and wife presumption
  – pre-1975 married women’s presumption
  – presumptions about bank accounts

Question 25

What is a form of title presumption?

Answer 25

A general presumption that the property is presumed to be held in the form that title was taken in.

Question 26

What is the joint form presumption?

Answer 26

Property acquired during marriage in any joint form is presumed to be CP upon divorce, but not on death

Question 27

Is it possible to have CP and joint tenancy at the same time?

Answer 27

No

Question 28

How do you rebut a presumption that property acquired during marriage is CP?

Answer 28

By showing that the property was taken in joint tenancy

Question 29

What is the only time that the joint form presumption applies?

Answer 29

Only for divorce, not for death. On death, joint tenancy property is presumed to be joint tenancy, not CP

Question 30

Can you rebut the joint form presumption through tracing?

Answer 30

No, but you can possibly get reimbursement. If one spouse is trying to get his SP interest out of jointly held property, and he can produce a written agreement, he might get a reimbursement for any SP contribution

Question 31

How do you rebut a joint form presumption?

Answer 31

Through a written agreement that is signed by both spouses saying that each owns their half as SP or a clear statement in the title or deed.

Ie: if the deed says “husband and wife, as joint tenants, each retain their SP interests.” That allows the husband and wife to each claim jointly held property the way that a joint tenant would own it, and each has their SP interest but also a right of survivorship. The wife owns the property as a joint tenant and has an SP interest during the life of the two of them, but if the husband dies before the wife, then the wife has a right of survivorship and owns that joint tenancy property as her own instead of it being CP that he can will away his one half to