Q. Before my wife and I married, she convinced me to sign a Prenup prepared
by her brother, who is a Los Angeles divorce attorney. It says that I
waive any right to property acquired with her earnings. It also says I
had the opportunity to get legal advice but was choosing not to. At the
time I couldn't afford an attorney. Six years later, she says I have
no rights to the house we bought together. A friend says that since I
didn't have an attorney at the time I signed it, the agreement cannot
be enforced. Is this true?
Rick, Pasadena, CA
Must an Attorney Advise Me Before I Sign a Premarital Agreement?
Whether or not a Prenup - formally known as a premarital agreement - gets
enforced is highly fact specific, so it is impossible for me to answer
your question except in general terms. I would need more information and
to look at the document carefully. I can give you some useful pointers, however.
California has adopted the UPAA (The Uniform Premarital Act) as Family
Code sections 1600-1617. Prior to its adoption prenups were viewed by
courts with suspicion, and they were much harder to enforce. One reason
was that as a matter of public policy it was believed that prenuptial
agreements undermined marriage and so promoted divorce. Today they are
viewed as supportive of the marriage institution, particularly in cases
of second marriages where many people won't remarry without one. Although
we speak in terms of marriage, the UPAA applies equally to registered
Still, they are viewed somewhat technically and to be enforceable they
must meet the requirements of the statutes.
Family Code section 1612 speaks to what rights are properly altered by a Prenup. Subsection (a)(1)
and (3) deal with property interests. As a starting point, there is no
question but that a premarital agreement can waive interests in real property
The critical family code section dealing with enforceability is
section 1615. Anybody considering a Prenup, or questioning its validity, should scan
this statute. The chief defense to a Prenup is that it was not executed
voluntarily. If you can prove that, it will be treated as void. If the
agreement was signed as result of duress, coercion or undue influence
it will likely not be enforced. The lack of an independent attorney can
result in a finding that the agreement was not entered voluntarily.
If one expects a premarital agreement to be enforceable, there is simply
is no safe reason for dispensing with legal counsel. Prenups should only
and always be drafted by qualified attorneys, and both parties must actually
be advised about their legal effect, or they may not be worth the paper
they are written on.
In all cases where my office drafts a premarital agreement, we will not
proceed if the other party is unrepresented. In fact, where the other party lacks sufficient financial resources to
do so, we insist that person select counsel and that our client pay for
it. In my opinion it is a dangerous practice to deny a less financially
empowered spouse or domestic partner the ability to access legal counsel
in these situations.
Why Is Independent Counsel Important?
The importance of having independent counsel in these matters is evident
from the language of FC section 1615:
"(a) A premarital agreement is not enforceable if the party against
whom enforcement is sought proves either of the following:
* * *
(c) For the purposes of subdivision (a), it shall be deemed that a premarital
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
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 premarital agreement, execute a document declaring that he or she
received the information required by this paragraph and indicating who
provided that information...."
Notice how these provisions are almost shouting 'independent legal
counsel.' It is rare to see a phrase repeated so often within the
same code section.
So examine whether your agreement, and the required separate writing,
seem to address these requirements. Also, check to see whether the other
conditions for enforceability are met. There may be other reasons why
your Prenup will not be enforced, as where undue influence was exerted
to obtain your signature (notice the seven day waiting period, which is
intended to overcome the social pressures where a wedding date is looming).
But you would be ill-advised to embark upon a challenge to the agreement
without legal counsel this time around; don't compound the problem.
A final comment: Setting aside the prenuptial agreement may only have
a limited affect upon the status of the house. For instance, the rules
relating to transmutations and reimbursements still apply. I have written
about those elsewhere in this Blog, but if the house was acquired by your
wife as her separate property independently of the Prenup it remains her
separate property even if the agreement is voided. However, if there was
a mortgage and it was paid down with her earnings during marriage the
cancellation of the Prenup may benefit you because the community will
thereby gain a Moore Marsden reimbursement right in the principal pay
down and appreciation.
Again, seek out an experienced family law attorney. And, I always urge
that people consider mediating these types of family law disputes, or
even mediating the provisions of the prenup prior to signing the final version.
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