California Pre/Post Marital Agreements – December 2007 Summary

Legal Developments

Revised Notary Acknowledgement (effective January 1, 2008)

On October 10, 2007 Assembly Bill 886 was signed by Governor Arnold Schwarzenegger effective January 1, 2008.  The new law includes the following revisions to statutory acknowledgment and jurat certificates: 1) removes the words "personally known to me" from the statutory acknowledgment and jurat certificates; and 2) adds the words "I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct" to the statutory acknowledgment certificate.  Click here to link to the full text of AB 886 on the California Secretary of State web site.  Notary acknowledgement in Premarital and Postmarital agreements and in Abstract.

General note: Law & Strategy has been updated throughout to reflect relevant case law developments since the last update.

Updated Product Features

Expanded Purpose Section for Postmarital Agreements

Based on In re Marriage of Burkle [Burkle II] (2006) new options permit husband and/or wife to make risky investments and/or to allow financial security. New Question 30 (Postmarital Agreement Purpose Section).

New Option to Specify Custodial Arrangement Custodial of Children of Prior Relationships

This provision may be psychologically important should the children of a former relationship later end up moving into the parties’ home and such was not anticipated when they married.  New Questions 126 (Custodial Arrangement) and 138 (Custodial Arrangement).

New Option to Make Payments from Community Account to Support Aged Parents

Adds the option of specifying whether payments to support aged or infirm parents shall be deemed ‘joint expenses’ paid from the community account or treated as separate expenses paid from separate assets.  New Question 179 (Joint Acct: Payment for Aged Parents).

New Jointly-Owned Premarital Property Provision

It is important to specify whether the character of any previously owned property will change based upon the parties’ actions during marriage and, if so, how. This provision addresses this issue with new questions relating to changing ownership of property owned by the parties jointly prior to marriage upon death or dissolution. New exhibits added include: Joint Premarital Property, Legal Description for Joint Premarital Property, Joint Premarital Property to Remain Separate Property and Joint Premarital Property to Become Community Property. New Questions 201-211 (Joint Premarital Property Specified, Where Include Jt Property Description?, Include Joint Property Legal Description?, Jt Property Legal Description Specified), Character of Joint Premarital Property, Jt Property Remain SP Specified, Where Include SP Description?, Jt Property Becomes CP Specified, Where Include CP Description?, How Will Jt Property Be Divided?, Jt Property Divided Specified).

Expanded Management of Property Provision

Prior to this update the ‘Management of Property’ provision was automatically inserted in the ‘Property Considerations and Agreements’ article of the Agreement without asking any related questions.  Family Code §1100 generally provides that spouses have equal rights to manage and control community property.  This expanded provision adds new options to permit the parties to alter that and specify who has primary management and control, and when the consent of both parties is required.   New Questions 219-221 (Management of CP: Right to Manage, Management of CP: Custom Specified, Management of CP: Info to Other Party).

Language Added to Strengthen Testamentary Document Provision

In an effort to minimize the estate tax liability upon the death of the first spouse, estate planners often suggest that the parties declare all of their property to be community. The problem is that it is seldom explained that by doing so one party may be deemed to have made a gift of his or her separate property to the community. This provision is an attempt to prevent any such document from having an unintended effect.  Question 541 (Testamentary Documents).

New Option to Attach Attorney’s BriefCase®Summaries as Exhibit For Cases Named In Agreement

The finished Agreement lists numerous California appellate opinions.  One possible complaint is that a party did not know what the case citation meant. This question gives you the option of attaching Attorney’s BriefCase® summaries of the cases as an Exhibit to the Agreement.  New Question 607 (Include Atty Briefcase Summaries?).

Software Upgrades

New ‘Search’ Feature Added

A major upgrade to the software in the form of a new ‘Search’ feature has been added that will greatly enhance use of the program. You may now search the Navigator, Answers, Law & Strategy, Notes, Question Help, and the Text that appears in the Progress window by selecting Search on the Lawgic menu and then Search again. This greatly expands the search capabilities of the program and eliminates the need to create the ‘Outline’ document --- created by selecting File, Send, Navigator/Outline -- for purposes of searching the questions and answers.

Drop-Down Menus Added

Drop-down menus have replaced radio buttons for ‘bundle’ questions (screens with more than one question on them), which contain long lists of answer choices.