“[T]he term “marital agreement” refers to an agreement executed by a husband and wife during marriage, not in contemplation of divorce, but as an incident of an ongoing marriage. Thus, a marital agreement differs from a premarital agreement as to time of execution, and from a marital settlement agreement as to purpose.”
“Several statutes authorize husbands and wives to enter into marital agreements, so long as such agreements relate to property rights. Thus, Fam. Code § 721 provides that, subject to rules governing fiduciary relationships, a husband and wife may enter into any transaction with the other, respecting property, which either might if unmarried. [Fam. Code, § 721, subd. (a)] Fam. Code, § 1500 provides that the property rights of a husband and wife prescribed by statute may be altered by a marital property agreement. Fam. Code § 1620, although generally proscribing agreements altering the legal relations of husbands and wives, makes an exception as to property.”
“One of the primary reasons for entering into a marital agreement is to change the status of property. For example, the separate property of one spouse may be converted into the separate property of the other spouse, separate property may be converted into community property, or community property may be converted into separate property. Marital agreements used for this purpose are normally termed “transmutation agreements. The statutory requirements governing transmutation agreements are contained in Fam. Code § 852. A transmutation of real or personal property made after January 1, 1985, is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. [Fam. Code, § 852, subd. (a)] A transmutation of real property is not effective as to third parties without notice thereof unless recorded. [Fam. Code, § 852, subd. (b)] The statutory requirements are not applicable, however, to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage. [Fam. Code, § 852, subd. (c)] Nor does the statute affect the law governing characterization of property in which separate property and community property are commingled or otherwise combined. [Fam. Code, § 852, subd. (d)]”
“A great deal of the discussion relating to premarital agreements is equally applicable to marital agreements. For example, the objectives are often the same. Also, marital agreements, like premarital agreements, are invalid if they promote dissolution, violate the duty to support minor children, or are contrary to public policy [Diosdado v. Diosdado, 97 Cal. App. 4th 470, 118 Cal. Rptr. 2d 494 (2d Dist. 2002) (holding that a postnuptial agreement which attempted to impose liquidated damages for either spouse’s infidelity during the marriage, thus attempting to impose a penalty on one of the parties as a result of that party’s “fault” during the marriage, was contrary to the public policy underlying the no-fault provisions for dissolution of marriage and therefore unenforceable)]. Similarly, considerations involving tax consequences and the advantages of having dual representation are equally applicable to both types of agreement. Basic contract principles as to capacity, object, consideration, and consent are generally as applicable to marital agreements as they are to premarital agreements subject, however, to the important qualification that spouses, unlike prospective spouses, are in a fiduciary relationship.”
“Marriage creates a fiduciary relationship between spouses. [In re Marriage of Binette, 24 Cal. App. 5th 1119, 235 Cal. Rptr. 3d 354 (4th Dist. 2018)] The confidential relationship between spouses imposes a duty of the highest good faith and fair dealing on each spouse. [In re Marriage of Binette, 24 Cal. App. 5th 1119, 235 Cal. Rptr. 3d 354 (4th Dist. 2018)] The confidential relationship between spouses begins immediately upon completion of the marriage ceremony. [Tompkins v. Bishop, 94 Cal. App. 2d 546, 211 P.2d 14 (1st Dist. 1949)] Although there is earlier case law to the contrary [see In re Marriage of Stevenot, 154 Cal. App. 3d 1051, 202 Cal. Rptr. 116 (1st Dist. 1984)], at least with respect to any dissolution or separation proceeding commenced on or after January 1, 1993, the confidential relationship continues until the community property has been divided. In other words, separation in anticipation of dissolution does not end the confidential relationship. [Fam. Code, § 1100, subd. (e) (duties imposed by Fam. Code, §§ 721 continue until assets and liabilities have been divided by parties or a court), 2102 (from date of separation to date of distribution of community assets or liabilities, each party is subject to standards set forth in Fam. Code, § 721.”
[California Civil Practice Family Law Litigation [certain citations omitted]]
