Wednesday, December 16, 2009

AGREEMENTS RELATING TO MARRIAGE

DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, in the San Fernando Valley, serving Divorce and Family Law clients in the Courts of Los Angeles and Ventura County for over 35 years, owner of WARNER CENTER LAW OFFICES, addresses agreements relating to marriage in this Blog.

There are four (4) basic types of agreements relating to marriage: Prenuptial Agreements, Postnuptial Agreements, Transmutation Agreements, and Marital Settlement Agreements.

A PRENUPTIAL AGREEMENT (also known as a Premarital Agreement, an Antenuptial Agreement, a Prenup, or a Pre-nup) is a written agreement entered into by the parties prior to marriage between the prospective spouses, generally providing for division of property and limitation or elimination of Spousal Support [aka Alimony) if the marriage does not work out, and frequently eliminating or modifying inheritance rights and other rights that a married party may have on the death of the other spouse.

In California, Prenups are governed by FAMILY CODE Sections 1500 through 1620. People enter into Prenups for a variety of reasons, primarily to enable them to strucure their own settlement and allocate their property and income as they see fit, if their marriage does not work out.

In order for a Prenup to be valid, it requires an offer, an acceptance, consideration, mutual assent, legality, legal capacity of the parties, and it must be in writing, executed voluntarily by both parties, supported by a full and/or fair disclosure of each party's assets and liabilities, and cannot be unconscionable.

A POSTNUPTIAL AGREEMENT (also known as a Postmarital Agreement, a Postnup, or a Post-nup) is a written agreement entered into by the parties after their marriage, and is similar to a Prenup, except that a Postnup is far more strictly scrutinized by the Court in Family Law proceedings, because married people are saddled with Fiduciary duties and responsibilities to each other [as addressed in FAMILY CODE Section 721, 1100 et seq., and 2100 et seq.] of the highest good faith and fair dealing, requring that neither shall take any unfair advantage of the other, and requiring each spouse to make full disclosure to each other of all material facts regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest, and debts for which the community may be liable, and to provide equal access to all information, records and books that pertain to the value and character of those assets and debts, upon request.

A TRANSMUTATION AGREEMENT (otherwise known as a Separate Property Agreement) is a written agreement entered into by the parties during their marriage, whereby they agree to change the character of property, whether from Separate to Community, from Community to Separate, or from Separate Property of one party to Separate Property of the other party.

The laws regarding TRANSMUTATION AGREEMENTS are strict, and unless they are strictly complied with, a court can void, refuse to enforce, and/or set aside a TRANSMUTATION AGREEMENT.

Parties enter into TRANSMUTATION AGREEMENTS for a variety of reasons, which may include making gifts or the protection of assets from the fallout of debts incurred by one spouse. For further information regarding TRANSMUTATION AGREEMENTS, see this writer's Blog posted on December 4, 2009, entitled: "A GIFT TO A SPOUSE MIGHT NOT BE HELD TO BE A GIFT AFTER ALL."

A MARITAL SETTLEMENT AGREEMENT (otherwise known as a MSA or a PROPERTY SETTLEMENT AGREEMENT) is a written agreement entered into by couples during the process of a divorce or legal separation, and it may contain provisions resolving property issues, parenting schedules, support amounts, and other issues affecting the rights and obligations of the parties to the marriage. For further information regarding MSAs, see this writer's Blog posted on December 16, 2009, entitled "BEWARE GOING PRO PER; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET."

A party entering a marriage is best served by consultation with competent family law counsel regarding the preparation of a PRENUPTIAL AGREEMENT.

A party in a marriage where potential economic changes appear over the horizon is best served by consultation with competent family law counsel regarding the preparation of a POSTNUPTIAL AGREEMENT or a TRANSMUTATION AGREEMENT.

A party involved in a divorce or legal separation is best served by representation by competent family law counsel throughout the proceedings, including the preparation of an appropriate MSA when the case is resolved.

In 1980, the California State Bar commenced its Specialization Program. DONALD F. CONVISER [the owner and principal attorney of WARNER CENTER LAW OFFICES] was Certified as a Family Law Specialist in 1980 in the first group of Family Law Specialists Certified by the State Bar of California.

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