Fill and Sign the California Agreement Form

ACKNOWLEDGEMENT OF RIGHTS AND OBLIGATIONS RE: POSTNUPTIAL AGREEMENT BETWEEN:       AND       . I       , hereby acknowledge my understanding of the following rights and obligations of the parties to a Postnuptial Agreement under the laws of the State of California: 1. ASSETS California is a community property state. All property acquired by a married person during their marriage while living in California is presumed to be community property. Upon death or divorce, the value of all community assets is divided equally in terms of value between both spouses. Both marital partners are equal agents of the partnership, and able to bind the partnership if acting within the scope of his or her authority and if acting for the joint benefit of the family. The California community property system adds to joint ownership the right of equal management and control. All benefits which come from either spouse's employment during the marriage are community property to the extent they are earned and/or accrued during the marriage. This can include retirement benefits, pensions, savings plans, stock purchase plans, 401k plans, sick and vacation pay, and stock options. If the benefits are not fully vested at the time of a separation, an allocation is made between the community and separate interests. Separate property is property: a) owned before marriage, b) acquired during marriage by gift or inheritance, or c) acquired after separation. Earnings, income or appreciation from separate property sources remains separate property. If there is a dispute about whether an asset is separate property, you must have proof that you acquired the separate property in one of these ways, and have documentation to trace the separate property back to the original source. If you use separate property to acquire property in joint names during the marriage, you are only entitled to reimbursement for the amount of the separate property contributed (no interest or appreciation) and again, you must be able to trace the contribution back to the separate property source. If you own a business prior to marriage, the community may acquire an interest in the business if the business increases in value during the marriage, depending upon the reason for the increase in value. If you own a home in your own name and community funds are used for mortgage payments or to pay down the principal on a loan, the community will acquire an interest in the appreciation in the value of the property, but only in the ratio that the amount paid Acknowledgement of Rights and Obligations Page 1 of 3 on principal bears to the total purchase price. The community will also be reimbursed for the amount paid down on principal. The way you hold title to real property will affect disposition of property upon death of a spouse. For example, property held as joint tenants will automatically become the property of the surviving spouse. Property held as community property or tenants in common will be distributed according to the will or trust of the spouse, or according to the laws governing intestate succession in the absence of a will or a trust. 2. DEBTS Debts incurred during the marriage are presumed to be community property. The only debts which would normally not be community property are debts which are completely unrelated to the community (such as debts related to one person's separate property, support obligations, gifts or expenses related to a romantic relationship other than the marriage, or criminal acts which did not have a financial benefit to the community). This means that a spouse could incur a debt for a purpose the other spouse does not approve and it would still be a community debt. Debts incurred before marriage remain the responsibility of the person who originally incurred them. If community funds are used to pay these debts, sometimes there is a right of reimbursement for the community and sometimes not (special rules apply depending upon the type of debt and other assets/income which was available to pay it.) 3. DIVISION OF ASSETS AND DEBTS UPON DIVORCE In dissolution of a marriage, the court is empowered to allocate assets of comparable value to the former husband and wife to make the overall division of the gross marital estate substantially equal. It need not divide each asset. For example, when dividing a business might impair its value, the court will generally preserve the ongoing business interests if the court can still make an overall equal division of the marital estate. If you own a home together and one spouse continues to reside in the home after separation, that spouse could owe "rent" to the community, subject to an offset for payment of the costs of the home. If one spouse pays on community debts after separation, he or she will generally be reimbursed for those payments (the biggest exception would be if the debt payments are in lieu of support.). 4. SUPPORT Each spouse owes a duty of support to the other. Support can be ordered after separation. The amount and duration of support is set by the court and can depend on many factors. 5. CHILDREN Acknowledgement of Rights and Obligations Page 2 of 3 Each parent is entitled to custody of the children. Upon a separation, the court determines custody according to the best interest of the child. Child support is payable according to a standardized formula. 6. POSTNUPTIAL AGREEMENTS Under California law, the property rights of husband and wife prescribed by statute may be altered by a postnuptial agreement. A postnuptial agreement may be recorded in the office of the recorder of each county in which real property affected by the agreement is situated if the postnuptial agreement is executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged or proved. Recording or nonrecording of a postnuptial agreement or other marital property agreement has the same effect as recording or nonrecording of a grant of real property. Information on the enforceability of postnuptial agreements is contained in the “Postnuptial Agreement Disclosure” that was received and signed concurrently with this “Acknowledgement of Rights and Obligations.” 7. BY EXECUTING THE POSTNUPTIAL AGREEMENT YOU WILL BE WAIVING ALL OF THE FOLLOWING RIGHTS: (a) Division of community and quasi-community property; and (b) The award of marital assets by the court on such conditions as it feels proper to provide for a substantially equal distribution of property. This statement of Rights and Obligations has been provided by       . I,       , hereby acknowledge receipt of this Declaration of Rights and Obligations on this the       day of       , 2       Signature       Type or Print Name Acknowledgement of Rights and Obligations Page 3 of 3 ADVISEMENT AND WAIVER OF RIGHT TO INDEPENDENT COUNSEL RE: POSTNUPTIAL AGREEMENT BETWEEN:       AND       . NAME OF DECLARANT:       . RIGHT TO BE REPRESENTED BY AN ATTORNEY. I have been advised to seek independent counsel regarding a proposed postnuptial agreement between myself and       . I am either currently in a position to afford independent counsel of my own choice or, if I can not afford independent legal counsel, I understand that       has agreed to compensate me for the cost of independent counsel to act solely under my direction and control. WAIVER. I understand that I am giving up the rights stated above and hereby waive the right to independent counsel. Signature of Declarant       Type or Print Name State of California County of       On       , 20       before me,       (here insert name and title of the officer), personally appeared             , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity , and that by his signature on the instrument the person , or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Advisement and Waiver of Right to Independent Counsel Page 1 of 1 POSTNUPTIAL AGREEMENT DISCLOSURE AS STATED BELOW, IT IS VERY IMPORTANT THAT YOU BE REPRESENTED BY INDEPENDENT COUNSEL, OR WAIVE SUCH RIGHT. SEVEN (7) DAYS MUST PASS BEFORE EXECUTION OF THE AGREEMENT AS PROVIDED BELOW. NOTICE: The parties understand fully the laws of California dealing with the validity of postnuptial agreements, including, but not limited to the following: (a) A postnuptial agreement is not enforceable if the party against whom enforcement is sought proves either of the following: (1) That party did not execute the agreement voluntarily. (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party: (A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) An issue of unconscionability of a postnuptial agreement shall be decided by the court as a matter of law. (c) For the purposes of subdivision (a), it shall be deemed that a postnuptial agreement was not executed voluntarily unless the court finds in writing or on the record all of the following: (1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. (2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the Postnuptial Agreement Disclosure Page 1 of 2 agreement and advised to seek independent legal counsel and the time the agreement was signed. (3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the postnuptial agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information. (4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement. (5) Any other factors the court deems relevant. WE HAVE FULLY READ AND UNDERSTAND THE ABOVE LAWS AND WERE PROVIDED THIS DISCLOSURE, A COPY OF THE PROPOSED POSTNUPTIAL AGREEMENT AND WERE ADVISED TO SEEK INDEPENDENT COUNSEL AT LEAST SEVEN (7) DAYS BEFORE EXECUTION OF THE ACTUAL AGREEMENT. Date:       Signature of Husband       Print or Type Name Date:       Signature of Wife       Print or Type Name DATE SIGNED MUST BE AT LEAST SEVEN DAYS BEFORE SIGNING THE ACTUAL AGREEMENT. Postnuptial Agreement Disclosure Page 2 of 2 POSTNUPTIAL AGREEMENT THIS AGREEMENT, made this       day of       , 2       , between       of       (Name) (Street Address)       ("first party or Wife"), and       , (City, State and Zip Code) (Name) of       ,       , (Street Address) (City, State and Zip Code) ("second party or Husband"), W I T N E S S E T H WHEREAS, Wife and Husband are now married, having been married on the       day of       , 2       , in       County,       ; WHEREAS, the parties now desire to enter into this agreement to clarify and establish their respective and collective rights, titles and interests in the separate and joint property of the parties, in the event of divorce, death or other circumstances that would serve to terminate their marriage, but without the present intent of either party to obtain a divorce or a legal separation; and WHEREAS, by execution of this agreement, the parties warrant and represent that they have fully disclosed their financial status, including all assets, liabilities, and income, as listed in the financial statement disclosures, attached as Exhibits A and B; and WHEREAS, the parties agree that this agreement is to be effective upon execution in accordance with the applicable laws of the State of California; and NOW, THEREFORE, in consideration of the mutual promises, covenants, warranties and other benefits and advantages accruing to each party, the parties agree as set forth above and below as follows: SECTION 1 SEPARATE PROPERTY Each of the parties shall retain full control of his or her own separate property, real, personal and mixed owned at the time of execution of this agreement and described in Exhibits A and B, wherever the property is located. By the terms of this agreement, each party hereby waives and relinquishes all claim to the separate property of the other. Each of the parties shall have and hereby is given the right to lease, sell, convey, mortgage or otherwise dispose of their separate property and receive all monies, rents, issues, income and profits thereof without any restrictions and without interference from the other party. Each of the parties shall be responsible for satisfying any tax obligations regarding his or her separate property. Despite any other provisions of this instrument, this agreement shall not affect in any way the parties' rights, titles, powers, duties, Postnuptial Agreement Page 1 of 8 discretions, immunities and interest in any property owned in joint tenancy or entirety with rights of survivorship. SECTION 2 JOINT PROPERTY The parties agree that all property not specifically designated as separate property shall be deemed to be part of their joint estates and considered their joint property. By the terms of this agreement, the parties evidence their intent to grant the powers and rights to the parties as to jointly owned property as is provided to spouses by operation of law. SECTION 3 SEPARATION AND DIVORCE To the extent permitted by law, this agreement shall govern the rights and obligations of the parties in the event of death of either or both parties, separation or divorce. Although the parties do not presently intend to separate or divorce, the parties agree this agreement shall be binding on both parties in the event of separation or divorce, and shall, if applicable, and allowed by law, be incorporated into any divorce decree. In the event of separation or divorce, the parties agree that the following types of property will be designated as either the separate or joint property of the parties: (a) separate or joint All property acquired by each party in their own name and/or with the use of their own assets or income prior to the execution of this agreement; (b) separate or joint All property acquired by each party in their own name and/or with the use of their own assets or income after the execution of this agreement; (c) separate or joint All property acquired in the joint names of both parties and/or with the use of joint assets or income prior to the execution of this agreement; (d) separate or joint All property acquired in the joint names of both parties and/or with the use of joint assets or income after the execution of this agreement; (e) separate or joint All property acquired in exchange for or from the sale proceeds of property owned by either party prior to the execution of this agreement; (f) separate or joint All property acquired in exchange for or from the sale proceeds of property owned by either party after the execution of this agreement; (g) separate or joint All property acquired in exchange for or from the sale proceeds of property owned by both parties before execution of this agreement; (h) separate or joint All property acquired in exchange for or from the sale proceeds of property owned by both parties after execution of this agreement; (i) separate or joint All monetary awards or settlements resulting from a lawsuit or other legal proceeding involving either party before the execution of this agreement (j) separate or joint All monetary awards or settlements resulting from a lawsuit or other legal proceeding involving either party after the execution of this agreement; Postnuptial Agreement Page 2 of 8 (k) separate or joint All monetary awards or settlements resulting from a lawsuit or other legal proceeding involving both parties before the execution of this agreement; (l) separate or joint All monetary award or settlements resulting from a lawsuit or other legal proceeding involving both parties after the execution of this agreement; (m) separate or joint All insurance proceeds received by either party before execution of this agreement; (n) separate or joint All insurance proceeds received by either party after execution of this agreement; (o) separate or joint All insurance proceeds received by both parties before execution of this agreement; (p) separate or joint All insurance proceeds received by both parties after execution of this agreement; (q) separate or joint All gambling or lottery winnings received by either party before execution of this agreement; (r) separate or joint All gambling or lottery winnings received by either party after execution of this agreement; (s) separate or joint All earnings, salary, wages, bonuses, commissions or dividends of either party received or earned before the execution of this agreement; (t) separate or joint All earnings, salary, wages, bonuses, commissions or dividends of either party received or earned after the execution of this agreement; and (u) separate or joint Other:             . Not applicable or The parties further agree that in the event of separation or divorce, the following additional provisions shall apply notwithstanding the other provisions of this agreement: (a) The Wife shall be entitled to receive property of Husband described as follows: [none or list property]             ; (b) The Husband shall be entitled to receive property of Wife described as follows: [none or list property]             ; (c) The following property shall be sold and the proceeds, less expenses, divided equally between the parties: [none or list property]             ; and Postnuptial Agreement Page 3 of 8 (d) The marital domicile shall be [occupied by Wife until her death or occupied by Husband until his death or sold and the proceeds divided equally between Husband and Wife.]             SECTION 4 DEBTS AND LIABILITIES The parties agree that each party shall pay the debts and liabilities incurred prior to execution of this agreement in that party’s name as separate property, and in no case shall either party be held liable for the debts and liabilities incurred in the other party’s name prior to execution of this agreement, but that the parties shall jointly pay for the debts and liabilities incurred in both parties’ names prior to the execution of this agreement as joint property; or the parties shall jointly pay the debts and liabilities incurred prior to the execution of this agreement in one or both party’s name as joint property. The parties further agree that each party shall pay the debts and liabilities incurred after the execution of this agreement in that party’s name as separate property, and in no case shall either party be held liable for the debts and liabilities incurred in the other party’s name after the execution of this agreement, but that the parties shall jointly pay for the debts and liabilities incurred in both parties’ names after the execution of this agreement as joint property; or the parties shall jointly pay for the debts and liabilities incurred after the execution of this agreement in either one or both parties’ names as joint property. SECTION 5 WAIVER OF MARITAL RIGHTS TO ESTATE Not applicable or Each of the parties hereby waives and releases to the other any and all of his or her right, title and interest of every kind and description in any and all property acquired by the other party by inheritance or other means and to all or a portion of the property of the other party which he or she may have, acquire, enjoy or be seized by reason of, or during or after, their marriage, as the wife, husband, widow or widower of the other party, whether by way of dower, courtesy, homestead, widow's allowance, statutory share or provision, descent, community property inheritance, succession or otherwise. SECTION 6 VOLUNTARY GIFTS Nothing contained in this agreement is intended to preclude either party from voluntarily making provision for, or granting powers or rights to, the other party in and by the party’s last will and testament, a codicil thereto or otherwise. SECTION 7 WAIVER OF RIGHTS TO PENSION/RETIREMENT FUNDS Postnuptial Agreement Page 4 of 8 Not applicable or Each party agrees that he or she shall retain all of the rights, titles and interests in the pension or other retirement plan or account in his or her name prior to and after execution of this agreement, including any income accruing or accrued from such plan or account and any increases in the value of such plan or account that result from depositing separate assets or income. The parties agree that regardless of the source of funds used in any pension, retirement or other deferred compensation plans or accounts, each party may maintain and continue such plans or accounts and each party waives any rights, titles and interests in the other’s plans or accounts. SECTION 8 ADDITIONAL OR FURTHER DOCUMENTS; COOPERATION Each party agrees that he or she will sign and execute any further or additional documents as may be necessary to put into effect the intended purposes of this agreement, such as any deeds, bills of sale, assignments, affidavits, tax forms or other instruments of transfer and title that are required in order to establish the parties’ respective rights in their separate and joint property. The designation of property as separate or joint, however, shall not be affected by a party’s failure to execute a necessary document, but the terms of this agreement shall control such designation. SECTION 9 ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations and understandings of the parties. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all parties. SECTION 10 AMENDMENT OR REVOCATION The parties agree to reserve the right to amend or revoke this agreement during the joint lives of the parties and the parties’ marriage by a written amendment or revocation signed by both parties. SECTION 11 ABSENCE OF DURESS OR UNDUE INFLUENCE The parties agree and state that each has freely and voluntarily entered into this agreement. This agreement was executed free of any duress, coercion, collusion, or undue influence, and the terms of this agreement are not unconscionable, but are fair, just, and equitable. Both parties were provided prior to execution of this agreement a fair and reasonable disclosure of the property and financial obligations of the other party and each party had, or Postnuptial Agreement Page 5 of 8 reasonably could have had, an adequate knowledge of the property and financial obligations of the other party. SECTION 12 SEVERABILITY If any portion of the agreement shall be held to be invalid or unenforceable for any reason, then all the remaining parts or portions shall be construed, implemented and administered in full force and effect as if such invalid or unenforceable portion did not appear herein. SECTION 13 CONTROLLING LAW This agreement shall be controlled, construed and given effect by and under the laws of the State of California. It is the intent of the parties that the Agreement be enforced to the fullest extent permissible under applicable laws and public policies. SECTION 14 SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, executors, administrators, and legal representatives. SECTION 15 MISCELLANEOUS CLAUSES (a)       ; (b)       ; (c)       ; (d)       ; (e)       ; (f)       ; (g)       ; Postnuptial Agreement Page 6 of 8 (h)       ; IN WITNESS WHEREOF, the parties have executed this agreement on the day and year first above written. HUSBAND (as used in this Agreement) Signature       Print or Type Name WIFE (as used in this Agreement) Signature       Print or Type Name Note: This Agreement must be executed by the Parties before a notary public. State of California, County of       On       , 20       before me,       (here insert name and title of the officer), personally appeared       who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity , and that by his signature on the instrument the person , or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California, County of       On       , 20       before me,       (here insert name and title of the officer), personally appeared       who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity , and that by his signature on the instrument the person , or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Postnuptial Agreement Page 7 of 8 Signature (Seal) APPROVED (optional) Attorney for Husband       Print or Type Name APPROVED (optional) Attorney for Wife       Print or Type Name Postnuptial Agreement Page 8 of 8 EXHIBIT A FINANCIAL STATEMENT DISCLOSURE OF WIFE I. Assets (Describe all assets considered separate property of Husband, including approximate value): a. Real Estate (description to include address and enough information to clearly identify and value)                         b. Bank Accounts and Cash (including life insurance cash value, and the numbers, names and banks of all financial, checking and savings accounts)                         c. Trusts (full name and any identifying number, description of assets and approximate value)                         d. Vehicles (including year, make and model)                         e. Other (including securities, stocks, bonds, pension/retirement plans or accounts, etc.)       Exhibit A Page 1 of 1                   II. Liabilities or Debts (Describe all debts and liabilities, including all notes payable, mortgages, loans, etc.)                         III. Annual Income (including salary, bonus, commissions, dividends, etc.) (Attach copy of Federal Income Tax Return and most recent paycheck stub as proof of income.)       Exhibit A Page 2 of 1 EXHIBIT B FINANCIAL STATEMENT DISCLOSURE OF HUSBAND I. Assets (Describe all assets considered separate property of Husband, including approximate value): a. Real Estate (description to include address and enough information to clearly identify and value)                         b. Bank Accounts and Cash (including life insurance cash value, and the numbers, names and banks of all financial, checking and savings accounts)                         c. Trusts (full name and any identifying number, description of assets and approximate value)                         d. Vehicles (including year, make and model)                         e. Other (including securities, stocks, bonds, pension/retirement plans or accounts, etc.)             Exhibit B Page 1 of 1             II. Liabilities or Debts (Describe all debts and liabilities, including notes payable, mortgages, loans, etc.)                         III. Annual Income (including salary, bonus, commissions, dividends, etc.) (Attach copy of Federal Income Tax Return and most recent paycheck stub as proof of income.)             Exhibit B Page 2 of 1