Trust your spouse, but don’t be blind or deaf. Decided to transfer property rights, don’t forget to put it in writing. Marital Agreements and Transmutations.
We fall in love, get married and hope it will last forever. I hope you are right, but what if you are not?
Spouses have to openly communicate with, respect and trust each other in order to build a stronger bond between them.
It is also important to understand, that our life is so unpredictable. Can you honestly say that you know what to expect from your partner/spouse? I hope your answer is “no”, as it is impossible to know what is going on in other person’s head. You might have theories, expectations, ideas, but that is just a guess.
Trust your partner/spouse, but don’t be blind or deaf.
There is nothing wrong about asking your partner/spouse to put in writing any agreements you have reached between each other, specifically when these agreements relate to transferring ownership of real property.
The property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement. See Family Code Section 1550.
Any married persons may by agreement or transfer, with or without consideration, do any of the following:
- Transmute community property to separate property of either spouse;
- Transmute separate property of either spouse to community property;
- Transmute separate property of one spouse to separate property of the other spouse. See Family Code Section 850.
- All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in California. See Family Code Section 760.
- All property owned by the person before marriage;
- All property acquired by the person after marriage by gift, bequest, devise, or descent;
- The rents, issues, and profits of the property described in this section. See Family Code Section 770(a).
General purpose of a marital agreement or transmutation is to change the application of California community law.
In the absence of a marital agreement or transmutation, spouses’ property is characterized pursuant Family Code Sections 760 and 770, see above.
Family Code Section 852 sets rules for enforceability of a transmutation:
- Transmutation agreement has to be in writing;
- Signed by an adversely effected spouse;
- Transmutation has to contain an express declaration stating that the characterization of specific property has been changed.
Marital Settlement Agreement:
General principals of contract law apply to Marital Agreements.
Marital Agreements have to be in writing and signed by both parties. Also, it is highly advisable to get parties’ signatures notarized and that each spouse has his/her own independent counsel.
Marital Agreements & Public Policy restraints.
- Marital Agreement is unenforceable if promotes dissolution of marriage;
- You cannot waive or limit child support;
- You cannot waive or limit spousal support;
- You cannot limit court’s jurisdiction over child custody and child support;
- You cannot waive spouses’ declaration of disclosure obligations.
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