If a husband gives $100,000 to his wife and keeps $175,000 for himself from the sale of a community property, is that’s a gift?
3 attorney answers
I agree that the terms of the post-nup and the circumstances in which it is made are very important factors in the character of the house Wife purchased.
The fact that Husband took more than his half of the proceeds from the sale could be strong evidence that could cut either way. It may be that you should be complaining that the agreement is unfair to you and should be set aside. Don't rush in to asking for the agreement to be affirmed and enforced.
The other issue I see here is that under the Moore-Marsden line of cases a person who uses community funds to pay down a mortgage on their separate property or improve that property can thereby give the community an interest in the separate property. The claim can be waived by appropriate language in a written agreement between the spouses, but if that did not occur, you Husband may have a claim against you.
I join in recommending that you consult with a good attorney familiar with property issues in divorce cases to determine how to proceed. This is not something that can or should be done over a free advice website.
Well, I agree with my colleague that the house is presumptively community property as it was acquired during marriage, but the existence of the post-nuptial agreement and quit claim deed may operate to overcome that presumption.
A lot is going to turn on the language of the post-nuptial agreement and the circumstances surrounding the parties' signature on that agreement. Wife can ask the Court to enforce the post-nuptial agreement, and the Court will have to delve into these facts - unless Husband stipulates to its validity, Wife is looking at a hearing on this issue.
This is the sort of sticky issue that needs to be handled by an attorney who knows what to look for in the documents, what questions to ask the parties, and what to say (or not) to the Court. I strongly suggest you contact an experienced family law attorney who regularly practices in your local courthouse.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.
It’s community property based on these facts.
This is general advice. You are anonymous. If you PM me i won’t know what it’s about.
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