September 13, 2007

Ask The Lawyer

Spouses can possibly change the character of their property

This week's question:
I thought when we got married that I would change title on my house to joint names with my new husband. And I did just that. Now I am not so sure that I did the right thing. Can we agree to change it back to my own name or must I go through a divorce to get it back in my name? I really do not want to go through a divorce just to do this.

Sarah S.
Almaden Valley


Dear Sarah,
It may be possible, Sarah, but it depends on a lot of circumstances. This is one area where it really makes sense to see your own attorney for advice.

You often hear about “prenuptial agreements” or “prenups” for short. They are also called “antenuptial” agreements. That type of agreement is one signed before spouses get married to each other. The agreements are often made between prospective spouses in contemplation of marriage and are typically to be effective only on marriage.

Generally speaking, spouses may also sign agreements after they get married. These agreements are typically called “marital agreements.”

Not to confuse you more, but there is another important term and that is marital settlement agreements. These agreements are made during marriage, but they are made in contemplation of marital dissolution, legal separation or nullity, rather than an intact marriage.

Now, back to marital agreements during an intact marriage and not in contemplation of divorce.

Marital agreements can be signed during an intact marriage without going through a divorce, now called dissolution of marriage. The classic definition of a marital agreement is an inter-spousal agreement executed during an intact marriage that affects marital rights and obligations.

Sometimes you hear the word “transmutation agreement.” That term is a legal term essentially meaning a change in character of property or certain rights. The California Family Code governs transmutation agreements.

§850 of the California Family Code states that married couples may transmute or change community property to separate property, separate property of either spouse to community property, or separate property of one spouse to separate property of the other spouse.

If a married couple is thinking about an agreement changing the character of their property, they need to remember that they must follow the general rules governing fiduciary relationships. California Family Code §721 is entitled “Transactions With Each Other and Third parties; Fiduciary Relation-ship of Husband and Wife.”

§721 states that in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships, which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each souse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of non-marital business partners.

Marital agreements during an intact marriage enable spouses to structure their marital relationship not only during marriage but on dissolution and on death, in ways different from those otherwise provided by law. But the validity of various provisions depends on all of the facts and circumstances, including the topics covered.

For example, I don’t think I would try to waive or give up basic child support by signing a marital agreement that states no child support or that provides for a bad custody or visitation plan that is against the children’s best interests. Also, I would not try to insert any other provision that is against public policy. It just will not work.

On the other hand, if a marital agreement is fair and all the rules are followed, it may change or transmute a community interest in separate property to a separate interest. For example a marital agreement may provide that a residence owned by one spouse before marriage will remain entirely the separate property of that spouse despite the use of community funds for the pay down of a loan during marriage or improvements to the property. This then may avoid the typical Moore/Marsden apportionment of separate and community interests.

If you are interested in some general reading in this area, log on to your favorite search engine and enter any of the California Family Code sections mention above. You may find them interesting for general information purposes.

However, a note of caution. You can see how this can get rather tricky quite quickly. So, the best thing you can do is to see your own attorney for advice. As you have seen many times in this column, there is no substitute for your own attorney who can take all of the key facts and circumstances into account and guide you in the right direction.

Good luck with the house issue, Sarah. I hope it all works out fine. With a little give and take, I’m sure it will.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.