I'm looking for help regarding a transmutation agreement (converting community property to separate property). I want to do this for asset protection reasons.
Is this agreement something I can do on my own, or do I need a lawyer to help out? If laywer, do you guys recommend some one in the Bay Area, CA?
Family Law Attorney
Transmutation of property is serious business; once it's done, it cannot be undone except by re-transmutation.
Transmutation requires a clear writing identifying the property in question in no uncertain terms and indicating that it is being converted from community property to separate property. Both spouses should sign it.
It may be relevant why you want to do it. Transmutations are not necessary effective as to third parties. See the relevant code section:
(a) A transmutation of real or personal property 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.
(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded.
(c) This section does not apply 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.
(d) Nothing in this section affects the law governing characterization of property in which separate property and community property are commingled or otherwise combined.
(e) This section does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation shall continue to apply. (Ad Stats 1992, C 162)
If you're doing it for "asset protection" from creditors, then you may be barking up the wrong tree.
You should also understand that this could possibly have tax implications, depending upon what's being transferred, why, and how.
You may want to pay a visit to an experienced, local family law attorney before doing this. It is not that you need a lawyer to DO it, but that you may need to know a) is it the best course of action for what you are trying to accomplish?, and b) is it a good idea, in general?
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2 lawyers agree
I agree with Mr. Yomtov's statements. I write only to advise the importance of your spouse having separate, independent counsel if you want a transmutation agreement to stand up. IMO, not only is it not a DIY project -- it is not something you can effectively accomplish without your spouse having an attorney too.
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Divorce / Separation Lawyer
There are quite a number of issues that need to be addressed in regard to drafting an enforceable agreement that has a reasonable chance to stand the scrutiny of attack under different theories of the law. There are many things to look at, and without the participation of experienced legal counsel, your chances of success are extremely low. An attorney I would recommend would be Cynthia Cho in Newark, CA. You can email her at firstname.lastname@example.org
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