A post-marital partition and exchange agreement is a contractual agreement between spouses to exchange all or some of their community property between them such that the exchanged property becomes the separate property of each spouse. The agreement may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse. Parties may also agree that income or property arising from the separate property of one spouse or property which is thereafter acquired shall be the separate property of the owner. Ordinarily, without such an agreement income from separate property is generally considered community property with some exceptions.
A post marital partition and exchange agreement must in writing and signed by both parties and is enforceable without any consideration.
However, a post-marital partition and exchange agreement is void with respect to the rights of any pre-existing creditors whose rights are intended to be defrauded by the agreement.
The parties may also enter into a post-marital agreement whereby separate property of a spouse is converted into community property. Such an agreement must be in writing, signed by both spouses and specifically identify the property being converted. The agreement must state that the property is being converted to their community property and the agreement is enforceable without consideration. However, the mere transfer of a spouse’s separate property to the name of the other spouse is insufficient to convert the property to community property.