Altering Character of Assets Flashcards
May parties opt out of CP
yes, they can agree to opt out by re-characterizing all or some assets.
How may parties opt out?
Pre-marital agreements; transmutation agreements
What are the requirements of prenups?
Must be in writing signed by both parties, unless agreement is fully performed on both sides or detrimental reliance.
What are some defenses to prenups?
Involuntary (11th hour ultimatum); unconscionable; waives or limits child support (cannot waive). Deemed involuntary unless had independent counsel (or valid waiver); 7 days to review prior to signing; if not represented by independent counsel, fully informed in clear writing of terms and their effect.
What constitutes unconscionability re a prenup?
Generally looks to whether agreement is fair. Often considered UC when the party didn’t have fair disclosure of other party’s $$$ and assets. Spousal support can be waived only if rep by independent counsel. Can’t waive legal duty of care of other spouse.
What is transmutation?
An agreement that changes the character of an asset from one form to another (i.e., SP to CP). Prior to January 1, 1985, transmutation agreements could be oral, written, or inferred from conduct. After 1/1/85, must be in writing, with an express declaration, and consented to by the spouse adversely affected. This rule does not apply to tangible gifts between spouses that are personal in nature and not of substantial value, when taking into account the marital circumstances as a whole. Statements in will not admissible as evidence of transmutation. ARGUE TRANSMUTATION WHEN YOU HAVE AN INTERSPOUSAL GIFT.
