Marital Legal Separation and Property Settlement Agreement where Minor Children and No Joint Property or Debts and Divorce Action Filed
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in California, but does
include basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into before a divorce is filed to be effective when signed,
or may be entered into after the divorce is filed to settle the case of
parts thereof. Those provisions relating to child support are considered
separable from the provisions providing for support of the parties and
division of property. Provisions for spousal support provided by
written agreement of the parties or orally agreed to in open court are
not subject to modification.
Discussion: Agreements are governed by the provisions
of the California Family Code.
Statutes:
FAMILY CODE
Division 4 Rights and Obligations During Marriage
Part 5 Marital Agreements
Chapter 1 General Provisions
1500. The property rights of husband and wife prescribed
by statute may be altered by a premarital agreement or other marital property
agreement.
1501. A minor may make a valid premarital agreement
or other marital property agreement if the minor is emancipated or is otherwise
capable of contracting marriage.
1502. (a) A premarital agreement or other marital property
agreement that is executed and acknowledged or proved in the manner that
a grant of real property is required to be executed and acknowledged or
proved may be recorded in the office of the recorder of each county in
which real property affected by the agreement is situated.
(b) Recording or non-recording of a premarital agreement or other
marital property agreement has the same effect as recording or non-recording
of a grant of real property.
CHAPTER 3
AGREEMENTS BETWEEN HUSBAND AND WIFE
1620 Except as otherwise provided by law, a husband and wife
cannot, by a contract with each other, alter their legal relations, except
as to property.
DIVISION 9
SUPPORT
PART 1
DEFINITIONS AND GENERAL PROVISIONS
CHAPTER 3
SUPPORT AGREEMENTS
Article 1. General Provisions
Subject to this chapter and to Section 3651, a husband and wife
may agree, in writing, to an immediate separation, and may provide in the
agreement for the support of either of them and of their children during
the separation or upon the dissolution of their marriage. The mutual
consent of the parties is sufficient consideration for the agreement.
3585. The provisions of an agreement between the parents
for child support shall be deemed to be separate and severable from all
other provisions of the agreement relating to property and support of the
wife or husband. An order for child support based on the agreement
shall be law-imposed and shall be made under the power of the court to
order child support.
3586. If an agreement between the parents combines
child support and spousal support without designating the amount to be
paid for child support and the amount to be paid for spousal support, the
court is not required to make a separate order for child support.
3587. Notwithstanding any other provision of law, the
court has the authority to approve a stipulated agreement by the parents
to pay for the support of an adult child or for the continuation of child
support after a child attains the age of 18 years and to make a support
order to effectuate the agreement.
3590. The provisions of an agreement for support of
either party shall be deemed to be separate and severable from the provisions
of the agreement relating to property. An order for support of either
party based on the agreement shall be law-imposed and shall be made under
the power of the court to order spousal support.
3591. (a) Except as provided in subdivisions (b) and
(c), the provisions of an agreement for the support of either party are
subject to subsequent modification or termination by court order.
(b) An agreement may not be modified or terminated as to
an amount that accrued before the date of the filing of the notice of motion
or order to show cause to modify or terminate.
(c) An agreement for spousal support may not be modified or revoked
to the extent that a written agreement, or, if there is no written agreement,
an oral agreement entered into in open court between the parties, specifically
provides that the spousal support is not subject to modification
or termination.
Case Law:
Marital settlement agreements incorporated into a dissolution judgment
are construed under the statutory rules governing the interpretations of
contracts generally. (Civ. Code, § 1635 et seq.; In re Marriage
of Benjamins(1994) 26 Cal.App.4th 423, 429. Further, married
couples may enter into contracts with each other concerning their property
rights as though unmarried, subject to rules controlling actions of persons
occupying confidential relations with each other. Haseltine v. Haseltine,
203 Cal.App.2d 48, 21 Cal.Rptr. 238, 244 (1962); In re Estate of Marsh,
151 Cal.App.2d 356, 311 P.2d 596, 599 (1957).
Marital settlement agreements merged into interlocutory judgments
become part of a judgment and enforceable by contempt. Flynn v. Flynn(1954)
42 Cal.2d 55 , 58 [265 P.2d 865.
