1. Promissory Estoppel: Party seeking enforcement performed his/her part of the bargain and changed thier position in reliance

2. Full Performance: The husband promised the wife that if she married him he would make her the beneficiary on his life insurance, followed through, but then changed it to his kids. Enforcable.

Permissible: property; choice of law; rights and obligations not in voilation of public policy

Non permissible: Child support is specifically prohibited

Support Waivers in Premarital Agreements

1986-2002 

Waivers are not expressly in violation of public policy as long as they are:

 voluntary

conscionable at the time of excecution

fair and reasonable disclosure of assets

2002 Premarital Agreement Act Amendments

Premarital agreements will not be enforcable unless:

1. Represented by independant legal counsel.

2. Conscionable at the time of enforcement.

Will not be deemed voluntary unless:

1. Represented by independant legal counsel OR

2. Expressly waived right in writing

a. If so, the party waiving counsel must be fully informed of the terms and effect of the agreement, in writing

3. Not Less than 7 calendar days between first presented and advised to see counsel and time signed

Easy transmutation, conversation, behavior

Nothing written needed.

Estate of Jafeman

(Transmutation)

** Critical time is the date of the alleged transmutation not the date of acquisition of property**

1. Must be in writing by express declaration

*consent forms are not enough*

2. Spouse whoes interest is adversely affected must make the writing

3. Oral agreements and conduct will not change the character of the property

**No extrinsic evidence to supplement the writing**

Extrinsic Evidence of Transmutation

Benson v. Benson

NOT ALLOWED!

Rather than using transmutation a spouse could alternately claim that they breached ther fiduciary duty by taking unfair advantage of the other spouse.

Excludes certain gifts from the express declaration requirement. Must be:

- A gift between the spouses of a personal nature (apparel, jewelry)

- Used solely or primarily by spouse to whom gift was made

- Not in substantial value taking into consideration teh circumstances of the marriage

1. Property titled in one spouse's name is treated differently from property titled in both spouse's names

(i.e. acquired interest v. reimbursement)

2. However, that title does not mean that it is the seperate property of the named spouse.

(Source of funds and intent control)

Property acquired prior to 1/1/1975 by a married woman in her name (including joint tenancy), is deemed to be her separate property.

- Arrised from the TITLE in woman's name

- Is rebutted by the intent of the husband

Putting property in woman's name alone signified a gift of community property to her. Husband maintained full control of CP.

Joint Property Acquired During Marriage

post 1984

- Presumed to be community property at divorce.

- Only rebutted by another agreement

- Right to reimbursement for SP contributions to the CP acquisition or improvement.  (Without interest)

- Joint tennancy required writing to rebut the presumption (other forms of joint title after 1987)

Marriage of Lucas

(pre 1984)

A seperate property contributor could only get reimbursement if there is an agreement between the parties to that effect (oral or written)

Oral or implied agreements about the character of the property will suffice

Property Titled as Community Property

Are presumed to be community property.

Rebuttal:

1. Before 1987: Same as prior to 1984 joint tenancy

- Oral agreements with regard to rebuttal are enforcable

2. Post: incorporated the 1984 joint title amendments with regard to the community property titles 

- Must be in writing

Community Property Title 

Right to Reimbursement

**Effective Date 2001**

Would be considered community property at divorce. Right of survivorship exists at death.

1. apparently selfless act is presumed a gift to the other spouse

2. An apparently selfish transfer to own SP, presume reimbursement  

1. Pre 2005: If a husband uses his SP funds to improve wife's SP, presumed gift

2. Post 2005: Legislature changed the code to presume reimbursement

(unless written waiver)

3.

Food, rent, vacations, medical and dental

**do not result in the acquistion of property**

1. Available CP funds are presumed to pay for family expenses

2. SP funds are only used when CP funds are ehausted.

3. When SP funds are used. There is no right to reimbusement unless the parties have some sort of agreement

"See v. See"

Tracing approach for a commingled bank account. Seperate property proponent can rebut the CP presumptio if at teh time of acquisition all community income would have been exhausted. The SP proponent assumes the burden of keeping adequate records,

Method to rebut CP presumption by showing that there was an excess of CP expenses over CP income over the entire length of the marriage and thus all property is  SP.

Only allowed where, through no fault of the spouse, it is not possible to acertain the balance of income and expendatures at that time

"See v. See"

Direct Tracing

"Marriage of Mix"

Method preferred by the SP proponent. Only need to show that the SP funds were available and intended to make a SP purchase

Level of acceptance is in question, courts generally prefer exhaustion method

Educational Degrees, Short Marriages

Remedies to Non Professional Spouses

1. With the degree goes the debt

2. Reimbursement to the community  for direct educational expenses or debts. Including interest at the legal rate. 

3. Community can be reimbursed for payments of a loan incurred by the other spouse prior to the marriage.

The effort that the spouse owning the SP business expended on the business during the marraige is actually community effort and it needs to be compensated.

2 Formulas:

1.Pereira

2. Van Camp

Used if: If the increase in value can be attributed to the community effort (Even if only the SP owners effort)

Method: Apportions the profits by allocating a "fair return" on the seperate property investment and allocating "any excess" to the community

Usually 10% unless different rate is proven

Usually favors the community

Used When: The increase in value can be attributed to something other than the community effort.

Method: Determine the reasonable value of the spouse's services, allcocates as community property. The remainder is deemed SP

Favors the SP owner

Credit Acquisitions

Marriage of Grinius

(More recent case)

California provides that spouses have equal management and control over community property with absolute power of disposition

Bank Accounts: If spouse puts earnings into a bank account with only one name, other spouse would need a court oder to access the account 

Gifts to Third Parties: See card

Community Businesses: See card

- Prohibits gifts for less than fair market value without the written consent of the other spouse. The gift is voidable. - Within the life of the gifting spouse, other spouse may recover full value of gifted property 

-After death of gifting spouse, other spouse may recover 1/2 of property 

Community Businesses 

Full disclosure, full access to information about assets and debts of the community, highest good faith and fair dealing 

Neither spouse shall take unfair advantage of one another

The community estate is liable for debt incurred by either spouse before or during the marriage. 

The spouse's SP is liable for debts he or she incurred before or during the marriage but not the other spouse's debts

1. Must put earnings  in an account in which other spouse has no right of withdrawal 

2. Must not commingle earnings with any other community property  

- Community estate is liable unless the other spouse's earnings are shielded 

- Other spouse's sp is not liable 

1. Best understood as protecting creditors 

2. Community Estate is liable for debts incurred by either spouse before or during marriage. 

3. Spouse can shield their income from premarital debts of other spouse by keeping in separate account which debtor spouse has no access to and not commingled with other  community property. 

4. After separation, the spouse is only liable to the other for common necessaries of life 

Result when there is some defect in the marriage, renders it void or voidable. 

Requires one or both spouses to have a good faith belief that the marriage was valid

The bad faith spouse cannot benefit from putative spouse status