San Jose Divorce Lawyer Advises Clients to Get It In Writing

In two recent California Family Law cases, that old cliché that “you better get it in writing” (perhaps one of the most repeated pieces of legal advice ever tendered) were borne out, yet again.In In re Marriage of Holtemann (2008) 162 Cal.App.4th 1175, husband executed a trust for estate planning purposes, which included a Transmutation Agreement. The Transmutation Agreement stated clearly that husband’s separate property was transmuted to community property. The Court found that husband’s separate property was in fact transmuted to community property, which probably causes you no surprise. Mr. Holtemann was surprised. He had also included language in his trust that the transmutation was conditional, only for estate planning purposes, and not for purposes of a divorce. The Court found that by putting the clear language of transmutation in his trust Mr. Holtemann had made a decision to transmute his separate property into community property, and he could not take it back, or place conditions on the transmutation. In In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, husband signed a deed putting the family home in wife’s name at the time it was first purchased. Only husband paid the mortgage payments, wife did not pay a dime, ever. Wife ultimately moved out and without notice to husband, sold the home out from under husband, keeping a check for $41,851.03. Husband and the parties’ 7 year old child were evicted. Divorce attorneys and the Courts usually follow the community money, and if something was paid for with community property (here, husband’s wages during marriage were community property) then the Court will presume that it is community property. But Mr. Brooks had signed that deed when the property was first purchased, and put the home in wife’s name alone. He put it in writing, and he could not take the transmutation of community property into separate property back. These two recent California cases show that when the wife got what she wanted, in writing, it was very helpful (conclusive, in fact) for wife. A good divorce lawyer will advise you that whether you are dealing with prenuptial agreements, child custody agreements, child support agreements, spousal support agreements, attorney’s fees, marital settlement agreements, or other issues related to Family Law, the party that has what they want in writing is better off. That is why you need a good divorce lawyer, to get what you want in writing, and to make sure that you use the right language in the writing.

At the law offices of Thomas Chase Stutzman, A Professional Corporation the Family Law Attorneys are constantly learning the new changes in the law, so that you will be better informed regarding why you should get that agreement with your spouse in writing.