California Marital Settlements: January 2004 Summary

Legal Developments

Fiduciary Duty During Marriage

In re Marriage of Delaney (2003) 111Cal.App.4th 991, 4 Cal.Rptr.3d 378.  A transmutation of the husband's separate property residence into community property was set aside because the wife could not overcome the presumption of undue influence that arises when one spouse benefits from an interspousal transaction, even one that benefits the community.  The party who benefits from the transaction must show that it was "freely and voluntarily made, with full knowledge of all the facts, and with a complete understanding of the effect of a transfer from his unencumbered separate property interest to a joint interest as Husband and Wife." (Id. at 4 Cal.Rptr.3d at p. 384.)   Law and Strategy updated at Questions 112 and 113.

Waiver of Remarriage of Recipient as a Condition Terminating Spousal Support

In re Marriage of Cesnalis (2003) 106 Cal.App.4th 1267, 131 Cal.Rptr.2d 436.  The court reviews and clarifies the conditions permitting a waiver of termination of support upon remarriage of the supported spouse.   Law and Strategy updated at Question 372.

Waiver of Future Investment Opportunities

In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 4 Cal.Rptr.3d 483.  This is the first appellate decision to consider the scope and ramifications of the duty to disclose future investment opportunities under Fam. Code §2102.  The Court held that the family court did not abuse its discretion in limiting the former wife's discovery re unadjudicated community property and in denying her relief on her motion to compel discovery where her evidence was insufficient to show the existence of unadjudicated community assets.  Law and Strategy updated at Question 665.

Updated Product Features

New Option to Assign Educational Debts

You now have the option to assign educational debts to the spouse who received the education pursuant to Fam. Code §2627 and Fam. Code §2641 (b).   Question 130.

New Option to Divide Mortgage Subsidy

You may now specify that a mortgage subsidy is confirmed as the separate property of its recipient or divide it per agreement.  You may also specify that the mortgage subsidy may be considered as supplemental income available for support calculation purposes.   New Questions 146-150.

Waiver of Future Investment Opportunities

You may now include an express waiver of the right to participate in future investment opportunities, business opportunities, or other income-producing opportunities that may accrue to the other party after the date of separation.   Question 665.

Question Numbers Now Displayed in Navigator

Question numbers are now displayed when you rest your cursor on any question in the Navigator.