Legal Question in Family Law in California

postnuptual Contracts

I have opened a business with a friend of mine and would like my husband to sign something that states he will not take any type of gain from my business if we ever get divorced. Can I just write something myself or should I have a lawyer do that for me, and what should it say?

Asked on 2/22/07, 7:23 pm

2 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

Re: postnuptual Contracts

It would be a form of a transmutation agreement. Most post-1984 transmutations require an agreement in writing signed by the spouse whose community property interest in the property is affected. (Fam. Code sec. 852 subd. (a).)

By case law, the writing should not refer to extrinsic matters, i.e. matters outside of the written document. The writing must contain an express declaration noting the change in characterization of the property to be transmuted. (Estate of MacDonald (1990) 51 Cal.3d 262.)

Probate law affects some of this, and you may want to speak to an estate planner.

Very truly yours,

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Answered on 2/22/07, 7:49 pm
Terry A. Nelson Nelson & Lawless

Re: postnuptual Contracts

Dream on about doing this yourself and expecting it to be enforceable when he contests it. Get an experienced divorce attorney to help you.

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Answered on 2/22/07, 8:50 pm

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