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Divorce/Separation/ Partition Agreement Questions: My CA…

Divorce/Separation/ Partition Agreement Questions:My CA...
Divorce/Separation/ Partition Agreement Questions:My CA husband and I have physically separated after 14 years of marriage. Our arguments have been over financial issues. Instead of divorce or legal separation can we simply do a Partition Agreement? We've both talked to lawyers and are in mediation. No one mentioned this as an option for us. How can we write an enforceable one and can the mediator do that for us and keep it out of the public courts? We are OK staying married and thinking this could be a way solve the financial arguments and settle up as if we split, yet remain married and have a fresh financial start of our choosing. Here is the information I found on Partition Agreements.Partition AgreementsA partition agreement between spouses divides property they jointly own between them.
In community property states, property acquired after marriage belongs equally to both spouses. However, when a partition agreement is executed, each spouse owns one-half of the community property as his or her own separate property. Future earnings and income arising from the separate property during the marriage remain the separate property of the owning spouse under the partition agreement.
The agreement can be in the form of a postnuptial agreement covering income and property or it can be a deed transferring one spouse's interest in the property to the other. For instance, a husband and wife can buy a house together and the husband can execute a deed conveying his interest in the house to the wife as her separate property. Consequently, the entire house belongs to the wife, including any proceeds she might receive from selling it.
TIP: A partition agreement must be in writing and signed by both the parties.
TIP: The spouses can partition existing property but agree that future earnings and income will be community property after the partition.
We are separated. Is it too late to enter into an agreement dividing our property?No. Partition agreements are commonly executed when spouses separate. The agreement can divide the marital property you own into separate property as you see fit.
Our partition agreement divides our interest in a piece of property equally between us and specifies that it is to be considered our separate property. Can I sell my half?Yes. Once the property has been partitioned, it is your separate property and you have the right to sell and manage it as you desire.
SIDEBAR: If marital property is not partitioned, neither the husband nor the wife can sell or dispose of their interest in it. For instance, a wife cannot sell or convey her half interest in the vacant lot she and her husband own together as community property unless there is a written and signed partition agreement transferring that interest in the lot to her as her separate property.
Can the judge divide our marital property when we divorce without any regard to our partition agreement?No. If the agreement is valid, the division of marital property set out in the partition agreement controls. For example, if the partition agreement gives all the cash in joint bank accounts to you, it will be awarded to you in the divorce decree (assuming the agreement is valid).
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10/24/2017
socrateaser
socrateaser, Lawyer
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Hello,
I am a member of the State Bar of California, the Bar of the U.S. District and Bankruptcy Court for the Central District of California (San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, San Bernardino, Riverside Counties), the Bar of the U.S. Tax Court, the California and National Associations of Realtors, and I have comprehensive information about all areas of California and federal law.

What you are describing would, under California law, be construed as a "marital agreement": an agreement between spouses to divide their property while married. This is a lawful agreement, but since you remain married, it is possible that a court could later determine that you and your spouse have accumulated additional community property, after the date of the marital agreement.

So, the answer here is, "yes," you could create the agreement you describe (though it won't be a "partition agreement," because no California court or attorney would characterize it as such) -- but, because the agreement is unconventional, you may find it to be sub-optimal at some future date, as compared to a judgment of dissolution of marriage or a judgment of marital separation.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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