California Pre/Post Marital Agreements:
August 2004 Summary
Legal Developments
Waiver of Spousal Support Held Unenforceable if Unconscionable At Time of Enforcement
In a case decided in June 2004, a Court of Appeal explored the parameters of permissible waivers left open in Pendleton and Fireman, and held that waivers of spousal support are unenforceable if they are unconscionable at the time of enforcement. In In re Marriage of Rosendale (2004) 119 Cal.App.4th 1202, 15 Cal.Rptr.3d 137, two represented parties agreed to a waiver of spousal support in a pre-Pendleton and Fireman premarital agreement. Eight years later the wife was grievously injured. In a subsequent dissolution initiated by the husband, a trial court upheld the waiver as it predated the amendment to Fam. Code §1612 that required that this factor be considered. The Court of Appeal reversed, holding that irrespective of whether Fam. Code §1612 could be applied retroactively, common law still required that waivers of support not be unconscionable. (This case was not final as of the date of this release.) Questions 1, 363, and 389; New Question 193.
Provision for Payment on Dissolution Held Unrelated to Spousal Support
In In re Marriage of Rosendale (2004) 119 Cal.App.4th 1202, 15 Cal.Rptr.3d 137, the Court of Appeal interpreted a provision for a payment on dissolution as being unrelated to spousal support and not a lump sum intended as an "alternative" method of providing spousal support. Thus, if you intend a lump sum payment to be an alternative to spousal support, it should be expressly stated in the Agreement. (This case was not final as of the date of this release.) Question 382; New Questions 383, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401 and 402.
Promise in Postnuptial Agreement to Grant Property in the Event of Illicit Drug Use Held Unenforceable as Violating Public Policy Favoring No-fault Divorce
In In re Marriage of Mehren & Dargan (2004) 118 Cal. App. 4th 1167, 13 Cal.Rptr.3d 522, the husband's promise in a postnuptial agreement to grant his wife all his interest in certain community property should he use illicit drugs was held unenforceable because it violated public policy favoring no-fault divorce. Question 1.
Supreme Court Considering Whether the Doctrine of Partial Performance Exempts an Oral Transmutation Agreement from the Writing Requirement of Family Code Section 852.
The Supreme Court is considering In re Marriage of Benson, 114 Adv.Cal.App.4th 835, 7 Cal.Rptr.3d 905, (rev granted 12/23/2003), which asks whether the doctrine of partial performance exempts an oral transmutation agreement from the writing requirement of Family Code section 852. Therein, the Court of Appeal held that traditional statute of frauds exceptions apply to oral marital agreements. If it is held to apply to marital agreements, it could also apply to premarital agreements. The language "We agree that neither of us will assert any community property rights in any property of the other unless granted in writing on any theory whatsoever, including but not limited to partial performance or any other exception to the statute of frauds" may now be added as an optional preemptive measure. New Question 193.
Updated Product Features
Expanded Capacity to Detail Prior Agreements
Multiple prior agreements may now be recited and summarized and may be specifically superceded or acknowledged to the extent they are not inconsistent with the current agreement. Questions 39, 40 and 41; New Questions 42 and 43.
Changed References to Children's Gender in Statistical Information Section
The previous format of "Alicia Clement (F) Born April 17, 1984 " has been changed to "Alicia Clement, a female, born April 17, 1984 ." Question 140.
Allocation of Cost Language Expanded
The word "allocate" has been replaced with the phrase "each pay our prorata share of the cost of" regarding shared capital improvements, major repairs and other expenses. Questions 255, 261 and 266.
Choice of California Law Provision Expanded
The Governing Law provision in the general contract clauses section has been expanded to make more explicit the intention to apply California law regardless of the parties' future domicile. Question 534. The exact wording will vary (depending on your choice of how to refer to the parties) but typical language will be:
Governing Law. We are both California residents and intend to live in California in the future. We understand that there is a possibility that we may live elsewhere during our marriage. We have carefully considered the significance of the choice of law to be used in the interpretation and enforcement of this Agreement and agree as follows:
This Agreement shall be interpreted under the laws of the State of California regardless of our future domicile.
Our interests in our community property shall be as provided under the laws of the State of California regardless of our future domicile. We understand that this means that we are each entitled to one-half of the community estate upon any termination of our marriage by divorce or dissolution, or entry of judgment of legal separation and the right to control one-half of our community property by will.
Our interests in our respective separate property shall be as provided under the laws of the State of California regardless of our future domicile. We understand that this means that should our marriage terminate by divorce or dissolution, or judgment of legal separation be entered, no court will have the power to distribute or apportion any interest in separate property except to the owner of the separate property. We each waive any right to request any distribution or apportionment of the other's separate property upon divorce, dissolution or legal separation, even if otherwise provided for by the laws of the state in which we are then domiciled.
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