California Family Law Attorney
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June 14, 2010
  Is a PRENUPTIAL AGREEMENT signed without an attorney ENFORCEABLE?
Posted By Thurman Arnold

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 domestic partnerships.

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 like residences.

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.

For more articles about premarital agreements, visit us here!

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T.W. Arnold

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March 06, 2010
Posted By Thurman Arnold

Q. Before I married we signed a prenup that says I waived any right to spousal support. Is this valid?

Clarissa, Carmel, CA

Maybe yes, maybe no. Sections 1612 and 1615 of the California Family Code impose important limitations on spousal support waivers effective 1/1/02.

Spousal support waivers absolutely require that the party waiving the right was represented by independent legal counsel at the time the agreement was entered into. Family Code section 1612(c). If a lawyer has not advised the party and signed off on the agreement, the waiver is unenforceable.

Even if a party was in indeed represented by independent counsel who advised the client and approved the prenup, the spousal support waiver will not operate "if the provision regarding spousal support is unconscionable at the time of enforcement." Family Code section 1612(c). Time of enforcement means when a party attempts to force the other party to adhere to the terms of the agreement, or is resisting a support request in divorce court.

Creative attorneys anticipate these potential bars to enforcement by carefully drafting the language of the prenuptial agreement, and by creating various scenarios within the support waiver. For instance, a straight waiver of spousal support is much less likely to be enforced than a conditional waiver of support. A conditional waiver might contain language that precludes the waiver if the party seeking support is gravely ill, unable to work, or receiving welfare benefits.

Lawyers drafting premarital agreements tend to charge moderate minimum fees because of the potential attorney malpractice exposure years down the road. Many attorneys won't handle them at all, or refuse to recommend that a party ever waive support and so they will not execute the agreement.

There are a number of other restrictions which must be overcome before a premarital agreement can be enforced. One is that at least seven calendar days must have passed between the date that a party was first presented with the agreement and then later signed it.

While you may be able to accomplish what both parties say they want are are willing to do before marriage in a prenup, you must retain legal counsel who is experienced in this area of the law or things may turn out differently than you expect down the road.

Once a wedding date is set, the earlier you get the agreement negotiated and signed the greater the likelihood it will survive objection or attack later.

If you already signed one and want to know whether it will be enforced for or against you, seek a family law expert immediately.

To read more about spousal support waivers in premarital agreements, read here!


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