Fill and Sign the Postnuptial California Form

ACKNOWLEDGEMENT OF RIGHTS AND OBLIGATIONS RE: POSTNUPTIAL AGREEMENT AMENDMENT 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 Postnuptial Agreement 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 Postnuptial Agreement 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 AMENDMENT 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 Postnuptial Agreement Page 3 of 3 ADVISEMENT AND WAIVER OF RIGHT TO INDEPENDENT COUNSEL RE: POSTNUPTIAL AGREEMENT AMENDMENT 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 amendment 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. Advisement and Waiver of Right to Independent Counsel Page 1 of 1 Signature (Seal) Advisement and Waiver of Right to Independent Counsel Page 2 of 1 POSTNUPTIAL AGREEMENT AMENDMENT 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 AMENDMENT 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 Postnuptial Agreement Amendment Disclosure Page 1 of 2 calendar days between the time that party was first presented with the 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 AMENDMENT AND WERE ADVISED TO SEEK INDEPENDENT COUNSEL AT LEAST SEVEN (7) DAYS BEFORE EXECUTION OF THE ACTUAL AMENDMENT. Date:       Signature Husband       Print or Type Name Date:       Signature of Wife       Print or Type Name DATE SIGNED MUST BE AT LEAST SEVEN DAYS BEFORE SIGNING THE AMENDMENT. Postnuptial Agreement Amendment Disclosure Page 2 of 2 AMENDMENT TO 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"), both herein referred to as "Parties". 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,       ; and WHEREAS, the Parties entered into a postnuptial agreement on the       day of       , 2       ; and WHEREAS, the Parties desire to amend portions of the postnuptial agreement for the best interest of all involved; 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 WHERAS, except as otherwise provided in this agreement, the postnuptial agreement and all provisions contained therein, shall remain in full force and effect. 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 AMENDMENTS The Parties hereby amend the postnuptial agreement, or add supplementary provisions to the agreement as follows (attach additional sheets if necessary): (a) [insert desired amendment or addition]       Amendment to Postnuptial Agreement Page 1 of 4 (b) [insert desired amendment or addition]       (c) [insert desired amendment or addition]       SECTION 2 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 3 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 4 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 Amendment to Postnuptial Agreement Page 2 of 4 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 reasonably could have had, an adequate knowledge of the property and financial obligations of the other party. SECTION 5 SEVERABILITY If any portion of this 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 6 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 7 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. IN WITNESS WHEREOF, the parties have executed this agreement on the day and year first above written. HUSBAND (as used in this Agreement) Signature of Husband       Print or Type Name WIFE (as used in this Agreement) Signature of Wife       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             Amendment to Postnuptial Agreement Page 3 of 4 , 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. Signature (Seal) APPROVED (optional) Attorney for Husband       Print or Type Name APPROVED (optional) Attorney for Wife       Print or Type Name Amendment to Postnuptial Agreement Page 4 of 4 Amendment to Postnuptial Agreement Page 5 of 4