California Pre/Post Marital Agreements – January 2004 Summary

Legal Developments

Spousal Fiduciary Duty

In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 4 Cal.Rptr.3d 378, applied the presumption of undue influence to void a transmutation of separate to community property. Law updated at Question 30 (when drafting a Postmarital Agreement).

Statute of Frauds Exceptions Apply to Fam. Code §852

In re Marriage of Benson (2003) 114 Cal.App.4th 835, 7 Cal.Rptr.3d 905, held that traditional statute of frauds exceptions apply to Fam. Code §852. For example, the doctrine of partial performance may exempt an oral transmutation agreement from the writing requirement of section 852. Law updated at Question 221.

Child Issues Not Subject to Binding Arbitration

Issues regarding children, such as custody or child support, may not be contractually limited and may not be resolved by binding arbitration. In re Marriage of Bereznak and Heminger (2003) 110 Cal.App.4th 1062, 2 Cal.Rptr.3d 351. Law updated at Question 499.

Updated Product Features

New Disclosure of Assets Commentary and Agreement language.

Law and Strategy and the document text have been updated and now vary depending on whether you are drafting a Premarital or Postmarital Agreement. Question 141.

Uncertainty Clause Now Limited to Premarital Agreements

The optional Uncertainty provision added in the last update is now limited to Premarital Agreements. Question 469.

New Acknowledgement of Fiduciary Duty provision now available for Postmarital Agreements

You now have the option to add a subsection acknowledging the parties' spousal fiduciary duty to a Postmarital Agreement. New Question 470.

New Uncertainty Due to Developing Law of Fiduciary Duty provision now available for Postmarital Agreements

You now have the option to add a subsection addressing the uncertainty due to the developing law of spousal fiduciary duty to a Postmarital Agreement. New Question 471