1. Equal economic partnership

2. Contract (you can modify some elements of marriage, including the economic partnership)

3.  Unwaivable elements (respect, fidelity, and support)

1. Spouses

2. Children

3. Creditors

i. Preliminary Issues

ii.  Characterization

iii. Management and Control of CP

iv.  Disposition of Property

1.  A document indicating that they understand that they have the right to be represented

2.  A document indicating that they are understand that they are giving up whatever relevant CP rights are at issue.

3.  A document indicating the date that they were given notice of their rights.

1.  Who is fighting whom (relationship) and for what property interests?

2.  Classification of property before any actions or changes in facts.

3.  What are the party's factual contentions and theories for why they win?

A premarital agreement will be enforced unless it can be shown that either

1.  that he or she did not enter the contract voluntarily or

2.  that the contract was unconscionable when entered

into and that he or she did not have actual or constructive knowledge of the

assets and obligations of the other party and did not voluntarily waive knowledge

of such assets and obligations.

Short marriage.  Can’t find agreement at trial.  Both signed an agreement that W would get the house + $500k upon divorce.  H owned the house @ marriage.  Thus, W does better under agreement than under CP.

Ct: Unenforceable b/c W does better upon divorce than staying in the marriage.  Premarital agreements that promote divorce violate public policy and are therefore invalid.

1.  Evidence is not available

2.  It is not economical to find the evidence

1. Presumption of CP is raised by showing that the property was acquired during the marriage.

2.  The other party can then rebut the presumption.  BOP:  Preponderance of the evidence.

3. If the rebuttal meets the BOP, then it is separate, if not, then community property.

i.  Gift

ii.  Valid transmutation or premarital agreement

iii.  Traced to another item of SP

iv.  Spouses living separate and apart or "legally separated"

Facts:  Husband and wife fight over a house in SF.  Wife raises a CP presumption because the house was acquired during marriage.  Husband says that the house was bought with his own money because their collective expenses exhausted their community property funds.

Holding:  The burden is on the party asserting the separate character of the property, and that the presumption applies when the one claiming that the property is community offers evidence that property was acquired after marriage.

Facts:  Wife and son of Mr. Mahoney from a prior marriage both claimed the proceeds of a flight insurance policy that Mr. Mahoney had bought for $1.00.  It was clear that hte policy was bought during the marriage, but it was unclear whether the $1.00 used to purchase the policy was acquired before or during the marriage.

Court:  Wife had a burden to prove that the life insurance was bought with CP funds.

Facts:  Husband is saying that a Santa Ana property was a gift from his father.  Wife is saying that husband gave money to father to buy house.

Holding:  The proper standard for rebutting the general community property presumption is a preponderance of the evidence.

Facts:  Wife/stepmother fighting children over father's settlement inheritance through grandfather's will.  Husband settled a claim about his son's will.  Husband died.  Stepmother/wife argued that the money was acquired during marriage.  Estate argues that the right was vested when Edwin died before the marriage.

Holding:  The interest was vested before the marriage.  The money is derivative from this interest.  Therefore, the money is separate property.  The presumption is that it is separate property because it derives from inheritance.

Facts:  Former wife fighting a former husband regarding his one-third interest in a property conveyed by the husband's employer.  Husband received the property after marriage and there argued that it was SP.  Wife argues that the property was received in lieu of pension benefits that were vested during marriage.

Holding:  If something is earned during marriage, it is community property.

The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse. 

i.Rule: No accumulation of CP while living separate and apart

ii.Standard: Intent to never reconcile & conduct which proves this intent. Subjective test. 

The source of the funds controls.  Property acquired during marriage that is untitled or titled in one spouse’s name is presumed to be CP unless the funds used to acquire the property can be traced to a SP source. 2 methods:

i.Change in Form does not change character (Ex. Bequest of Stocks are cashed out)

ii.Fruits of the Property (Ex. Get $ from inheritance, invest in stock + appreciation)

1. Writing

2. Must abide by general contract law rules

3.  Amendment or Revocation

PS - Agreements before 1/1/86 are governed by the old requirements (FC 1503).

•1/1/86-1/1/2002: Not per se against public policy. If executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability + advice of counsel at time of execution, waiver does not violate pp.

•After 1/1/2002: FC § 1612(c) – spousal support provisions in p.m.a’s will not be enforceable unless the party against whom enforcement is sought was represented by independent counsel at the time the agreement was signed. 

1.  It was entered into involuntarily 

2.  Unconscionability

•1/1/86 – 1/1/2002 - 6 Factors: (1) proximity of execution of the agreement to the wedding (2) surprise from the presentation of the agreement (3) the presence or absence of independent counsel or an opportunity to consult independent counsel (4) inequality of bargaining power (indicated in some cases by relative age and sophistication of the parties (5) disclosure of assets and (6) the understanding and awareness of the intent of the agreement.

•After 1/1/2002: Precise requirements. An agreement will not be deemed voluntary unless (1) the party against whom enforcement is sought was represented by counsel at the time it was signed or (2) Express waiver of representation in writing (3) 7 day waiting period b/w first getting presented w/ agreement and advised to get counsel and signing date (4) If there is counsel waiver, that party must be fully informed of the terms and basic effect of the PMA as well and the rights and obligations he/she would be giving up by executing it (5) A writing describing the rights and obligations that the unrepresented party would be giving up must be delivered to that party prior to signing + party must be proficient in the language of the PMA + before signing the PMA, the unrepresented party must execute a document declaring that he/she received explanation of rights and indicate who provided that information + at no point could there have been duress, fraud or undue influence. 

(1) that the agreement was unconscionable when it was executed and

(2) that before execution of the agreement, the spouse was not provided with fair and r/s disclosure of the property or financial obligations of the party and

(3) There must be proof that the party did not voluntarily waive, in writing, his/her right to disclosure of the property or financial obligations, and the party did not have actual or reasonably could not have had adequate knowledge of the property or financial obligations. 

i.How to Transmute:

(1)Rules apply to transmutations of CP to SP, SP to CP or SP. (FC § 850(a)-(c)). 

(2)Transmutation may be by written agreement or transfer, w/or w/o consideration. (FC § 850). 

(3)Strict Writing requirement with express declaration (§ 852(a)). 

1.  General Community Property Presumption

2.  Common Statutory Presumptions Respecting SP

1.  Acquisitions by a Married Woman Before 1/1/75

2.  Concurrent Estates

(a)If acquired by the married woman, the presumption is that the property is the married woman's separate property.

(b)If acquired by the married woman and any other person, the presumption is that the married woman takes the part acquired by her as tenant in common, unless a different intention is expressed in the instrument. (i.e. W will hold her portion as SP)

(c)If acquired by husband and wife by an instrument in which they are described as husband and wife, the presumption is that the property is the community property of the husband and wife, unless a different intention is expressed in the instrument.

1.  Married Woman

2.  Acquires Property in Her Name

3.  Before 1975

1.  Tenant-in-common

2.  Joint Tenancy 

3.  Community Property

CP w/Right of Survivorship

For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:

(a)A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.

(b)Proof that the parties have made a written agreement that the property is separate property.