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Is it Property of the Estate
To: cdcbaa@yahoogroups.com
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On a practical side, we attack these agreements in family court all the time. The facts and circumstances around the execution of a premarital agreement will be examined carefully before declaring it enforceable or unenforceable. I would be rather surprised if a Ch 7 Trustee argued it void as a matter of law.
Desiree Causey
714-375-6663
Sent from my iPad
> On Feb 6, 2014, at 7:20 PM, wrote:
>
> I did a little bit of research on a similar issue recently and I did not see any legal requirement that a premarital agreement be notarized.
>
>
> Family Code section 1615 sets out requirements for a premarital agreement to be enforceable. In general, if one spouse is seeking to invalidate the premarital agreement, they can prove that the agreement was unconscionable or involuntary, for example, by showing that they were not represented by an attorney, or they were not given full information about the spouse's assets prior to signing the agreement. But if both husband and wife agree that the agreement was executed voluntarily and was not unconscionable, I think it would be difficult (maybe not impossible, but difficult) for a Chapter 7 Trustee to argue that the premarital agreement should be void as a matter of law. Caveat: I read the family code sections on this, but I have not done any case law research regarding when/how a Chapter 7 Trustee can void a prenuptial agreement. Still, if the agreement was actually executed prior to marriage, and if both spouse's intend for the premarital agreement to be effective, it seems to me that you might have a good argument against the Trustee if he tries to go after the house.
>
> Here is a link to the family code sections:
> h
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Yes to #5, called the Moore Marsden Interest
Applying Moore Marsden Rule, the community property interest is calculated as:
CP PPCP + (CP% x MApp)
Where,
CP: Community property interest
PPCP: Payments towards Principal from community property
CP%: Community property percentage PPCP / Purchase Price
MApp: Appreciation during marriage
SP DP + PPSP + Pre-MApp + (SP% x MApp)
Where, SP: Separate property
DP: Down payment on property
PPSP: Payments towards Principal from separate property
Pre-MApp: Pre-marriage appreciation
SP%: Separate property percentage 100% - (PPCP / Purchase Price)
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
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On Thursday, February 6, 2014 2:24 PM, Gerald McNally wrote:
Giovanni,
to answer your questions:
1. House was in Wifes name before marriage in 2005.
2. Husband in Chapter 7, non-filing spouse. (Dennis, I tried removing the hyphen but Bill Gates disapproved!)
3. All dischargeable debt incurred by Husband prior to marriage.
4. Title is and has always been in Wife5. Yes, mortgage was paid with Husbandity the principal reduction occasioned by Husbands mortgage payments?)
6. Its been their principal residence since marriage in 2005.
Gerry
Gerald McNally
McNally & Associates, P.C.
517 East Wilson Ave., Ste 104
Glendale, CA 91206
818.507.5100
Fax: 818.507.5001
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Giovanni,
to answer your questions:
1. House was in Wife's name before marriage in 2005.
2. Husband in Chapter 7, non-filing spouse. (Dennis, I tried removing
the hyphen but Bill Gates disapproved!)
3. All dischargeable debt incurred by Husband prior to marriage.
4. Title is and has always been in Wife's name.
5. Yes, mortgage was paid with Husband's earnings primarily. (Is the
Husband's putative equity the principal reduction occasioned by Husband's
mortgage payments?)
6. It's been their principal residence since marriage in 2005.
Gerry
Gerald McNally
McNally & Associates, P.C.
517 East Wilson Ave., Ste 104
Glendale, CA 91206
818.507.5100
Fax: 818.507.5001
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The fact pattern is not very clear. Who is your client, husband or wife? I
would guess that it is the husband, but it is not clear. When you say that
all the debt belongs to the husband, I immediately think you're saying the
debt against the house is his, too, but I would surmise you meant that all
of the debt you want to discharge is the husband's. You refer to the
property as the "residence", which could mean that it is the couple's
principal residence or otherwise. If it is not their principal residence,
the answer seems simpler -- that is, if it was separate property from the
beginning and it paid itself, it should still be separate property and
beyond the reach of the non-owner spouse's Chapter 7 trustee. If it is the
couple's principal residence, it seems to me that if the mortgage payments
were made with community assets (i.e., the earnings of either or both
spouse), some of the property may be community property. Query whether the
fact that the property has the same value now as it did on the marriage
date means that there is no community equity. You also want to look at the
title presumption (that property is owned as the title says) and whether
one spouse made a gift to the other spouse of community assets which were
used to pay the mortgage payments, etc. Not a simple analysis, but perhaps
a clearer fact pattern could save people the work of analyzing too many
possibilities.
Giovanni Orantes, Esq.*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
Commercial Litigation
Estate Planning
Outside General Counsel
The fact pattern is not very clear. Who is your client, husband or wife? I would guess that it is the husband, but it is not clear. When you say that all the debt belongs to the husband, I immediately think you're saying the debt against the house is his, too, but I would surmise you meant that all of the debt you want to discharge is the husband's. You refer to the property as the "residence", which could mean that it is the couple's principal residence or otherwise. If it is not their principal residence, the answer seems simpler -- that is, if it was separate property from the beginning and it paid itself, it should still be separate property and beyond the reach of the non-owner spouse&
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Listmates,
PC in Chapter 7. Married for 10 years, but residence purchased prior to
marriage, so all debt belongs to husband. There has been no net increase in
value since Wife married Client. Problem is there is about $200k in equity,
all of which belongs to wife. There is a client-prepared pre-nup which does
not meet the statutory requirements (not notarized). Possible factor is
that Client has been making the money for the majority of payments.
Trustee (RG) has filed asset report and I don't understand what legal theory
he's operating on. Is this legit or a shakedown?
Gerry McNally
Gerald McNally
McNally & Associates, P.C.
517 East Wilson Ave., Ste 104
Glendale, CA 91206
818.507.5100
Fax: 818.507.5001
Notice to Recipient: This email is meant for only the intended recipient of
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any and all duplicates of this message from your system. Thank you in
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advice contained in this communication (including any attachments) is not
intended to be used, and cannot be used, for the purpose of (i) avoiding
penalties under the Internal Revenue code or (ii) promoting, marketing or
recommending to another party any transaction or matter addressed herein.
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