Dear shazmeister-ga
Your question raises complex legal issues that are best left to an
attorney. Inasmuch as we cannot provide legal advice in this forum I
will try to explain as best I can the differences in owned and
acquired property under California law in an effort to enlighten you
about the issue. I believe my research touches on issues that you will
find extremely informative:
A ?spousal agreement? is a very interesting legal instrument. It is a
contract entered into between married or betrothed persons (in the
latter case it is called a pre-nuptial agreement) designed to modify
or circumvent the property distribution laws that each spouse is
normally and otherwise entitled to. A spousal agreement must meet
several criteria to be considered valid:
?A spousal agreement must conform to several requirements to be valid, including:
-- It must be in writing
-- Both spouses must fully disclose their financial assets
-- The agreement cannot encourage divorce
-- Neither party entered into the agreement under duress?
LEGAL MATCH
http://www.legalmatch.com/law-library/article/spousal-agreements.html
For the purposes of marriage and divorce, which is the circumstances
under which the law is to be interpreted, California law defines
community property as any asset acquired or income earned by a married
person while living with his or her spouse. Separate property is
defined as anything acquired by a spouse before the marriage, or
during the marriage by gift, devise or bequest.
Under California law, each spouse owns a one-half interest in any
property or finances acquired or earned during their marriage from the
date of their marriage forward (unto death or to the date of their
separation). Without exception, California Law Firm Dishon & Block
describe it this way:
?Any income produced during marriage not originate from separate
property, is community property. In other words, your regular earnings
during the marriage are considered community, regardless of whether
they are held in an account in your name or that of your spouse.?
DISHON & BLOCK, ATTORNEYS AT LAW
Cached document
http://64.233.179.104/search?q=cache:9rafH0kxDGcJ:www.cadivorce.com/article-communityvsseparateproperty.htm+california+%22community+property%22&hl=en&gl=us&ct=clnk&cd=7
In California a ?spousal agreement? can indeed modify the application
of community property laws and effectively limit your claim to certain
property in the agreement. The question now is not whether or not you
might be deprived of property based on the agreement but rather if (1)
the agreement was executed in good faith, (2) whether you were
adequately informed and knowledgeable about the agreement, and (3) if
the un-notarized agreement is contractually valid. These would all be
points that a licensed attorney must answer and these are the types of
issues we cannot advise you on in this forum.
If you can obtain the original it would be in your best interest (in
my opinion) to do so. As a signatory of the agreement, at the very
least, you are entitled to a copy. I strongly recommend that you take
this contract to an attorney for examination and validation. If you
have the un-notarized original it is possible that your attorney can
secure it to prevent it from being notarized so it can be refuted in
court if legal action is necessary. It may also be possible for your
attorney to obtain an injunction to prevent your husband from
withholding assets from you on the basis that the agreement is invalid
? if that turns out to be the case. Along this same line, if the
contract is invalid the LLC itself might even be construed as
inappropriately formed, which of course might open up a whole
different can of worms.
It may be interesting to note (and I say ?may? because we are not
attorneys here) that, for at least some purposes, for a spousal
agreement to be considered valid and binding under Federal Law it must
be ??either be authenticated by a court or notarized.?
22 CFR PART 19 §19.7?4 FORM OF AGREEMENT.
http://www.washingtonwatchdog.org/documents/cfr/title22/part19.html#19.7
At any rate, if the spousal agreement were deemed invalid (and it may
very well be, as long as it is not authenticated by a court or
notarized) then it would seem that the community property statutes
would prevail. In other words, absent a valid agreement stating
otherwise, you would logically be entitled to access to the community
property as provided by law. On the other hand, if the ?un-notarized?
agreement were deemed valid, you would most likely have to file suit
in order to challenge the agreement based on your lack of knowledge at
the time and perhaps even on the basis (if this is true in your case)
that it was not executed in good faith; that you were coerced,
intimidated, or duped into signing it. Finally there is the issue of
full disclosure. If your husband did not fully disclose to you his
financial assets or those of his LLC, it could be argued (in my
opinion) that, without being fully and adequately informed (or
misinformed, as the case may be), you were persuaded to give up your
right to much more than you were initially led to believe.
As you can see the issue is quite complicated and will undoubtedly
require an attorney to sort out the facts. Keep in mind that where
client privacy issues are concerned attorneys are bound to their
clients. Having said that you can easily consult a lawyer without fear
that your queries will be made known. I highly recommend that obtain
the necessary documents or copies thereof, and do precisely that
without delay as the time frame upon which this agreement has been in
effect can, in some cases, become a factor (or at the very least, a
major issue or obstacle) in determining it?s validity.
Please take note of our disclaimer that encourages customers to
consult professionals in matters concerning legal issues. The
information I have provided is the result of research using various
published sources and is not intended to replace the advice of a
licensed attorney.
I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
INFORMATION SOURCES
DISHON & BLOCK, ATTORNEYS AT LAW
Cached document
http://64.233.179.104/search?q=cache:9rafH0kxDGcJ:www.cadivorce.com/article-communityvsseparateproperty.htm+california+%22community+property%22&hl=en&gl=us&ct=clnk&cd=7
LEGAL MATCH
http://www.legalmatch.com/law-library/article/spousal-agreements.html
22 CFR PART 19 §19.7?4 FORM OF AGREEMENT.
http://www.washingtonwatchdog.org/documents/cfr/title22/part19.html#19.7
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