Family Code and unenforceable agreements.
In my divorce case, I made an out of court oral agreement with my ex husband for me to abandon my omitted assets motion regarding a community real property and in return he would give me my share of the sale proceeds. However, he never gave me my share so I filed a renewed omitted assets motion. He argued that he never promised me my share and that I gave him the property, which would be a transmutation. But a transmutation has to be in writing so the disputed oral agreement is unenforceable. The court did not enforce the agreement and awarded me by part of the sales proceeds by applying Family Code section 2581 on the presumption of community property. My question is, when an interspousal agreement is found unenforceable, does a court simply ignore it in totality as if it didn’t exist, regardless of how much a party may dispute the agreement or its terms?
2 attorney answers
An agreement can/may be admitted to the Court to show "intent"... IF and only IF the Court allows it to be considered. Baring an agreement that has been "entered" or "ordered" and "accepted" by the Court; the Court will divide assets and debts (including omitted assets/debts) subject to community property presumptions and the Family Code. CCP 664.6 can make "oral" agreements that are "put on the record" enforceable. Take a look at CCP 664.6.
The information provided does not create an attorney/client relationship. Nothing in this communication shall be deemed to be legal advice or create an attorney/client relationship. My comments are general in nature and submitted for educational purposes only. YOU SHOULD IMMEDIATELY CONTACT AN ATTORNEY OF YOUR CHOOSING AND SEEK LEGAL ADVICE.
Why even ask the question if the court actually gave you what you were seeking? Or did I miss something?
I explained in my last two comments to Mr. Bern. Basically, by giving some credence to the unenforceable agreement, the trial court thought that my husband did not breach his fiduciary duty. The judge said "there's enough blame to go around as far as making arrangements." The judge was wrong because (1) the property was community property; (2) we entered into an interspousal agreement and both signed the sales document; and (3) my husband kept the proceeds. I had to file a seconf omitted assets motion to get my part. That's clearly a breach under FC 721(b) and 1101(a). You're right in that I got my half of the omitted asset, but the judge erred on my claim of breach of fiduciary duty. Whether the breach was intentional with remedies under 1101(h) is a separate question, but there was at least a breach justifying remedies under 1101(g).
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Yes. I'd seen CCP 664.6 but the conditions are not met because it was an oral agreement made out of court. In addition, my ex husband's implicit claim that there was a transmutation is not in accord with FC 852(a) and the presumption of community property as outlined in FC 2581 was not overcome.
My question was simply if in such circumstances the alleged agreement is given NO CONSIDERATION WHATSOEVER by the court and instead the property is divided as California law dictates.
Daniel Eldon Bern
To be clear you made no agreement for the court to even consider. All you did was withdraw a motion so property could be divided pursuant to code. There is no agreement for the court to even consider. There are circumstances where the court may consider an oral agreement made out of court. Deciding to withdraw a motion and withdrawing it does not mean you can’t refile at your pleasure without more. So in my humble opinion there was no agreement to for the court to give ANY CONSIDERATION to. Hope this SIMPLY answers your question to your satisfaction.
I'm sorry I explained that after I abandoned the first omitted assets motion and my ex husband didn't give me my share of the sale proceeds, I filed a second (renewed) omitted assets motion wherein even though the court did award me my half, the judge was confused by the (unenforceable) agreement and did not consider my husband keeping my share of the proceeds from the community property was a breach of fiduciary duty. The judge should have totally disregarded the unenforceable oral agreement and applied FC 1101 remedies.
I think the answer I'm looking to confirm is that if the out of court oral agreement was unenforceable then the court should have totally ignored it and simply applied California law on community property and fiduciary duty, and I think from your answers that you agree. Thank you for your answers.