Planning Well in Advance for a Prenup

WHY PLANNING FOR A PREMARITAL AGREEMENT (“PRENUP”) SHOULD BE DONE WELL IN ADVANCE OF THE WEDDING DATE

1.                   Requirement that each party have their own attorney (or waive the requirement for independent counsel): The law requires [i] each party to have independent counsel at the time the premarital agreement is signed, or [ii] to waive their right to separate counsel after being advised to seek independent counsel, and the signed waiver must be in a separate document from the prenup agreement.  California Family Code § 1615(c)(1).  Without meeting this requirement, the agreement would be considered not have been entered into “voluntarily” and therefore it would be deemed invalid.  Thus, the California Family Code and other applicable rules, statues, and cases would apply.   In order for each party to have sufficient time to hire attorneys and have each attorney advise the respective client as to the terms and enforceability of the terms of the prenup, planning for the prenup should be done months in advance of the wedding date.

2.                   Mandatory timing requirement: The prenup would be considered to be entered into involuntarily, and therefore it would be invalid, if the person contesting the validity of the prenup did not have at least 7 days between the time the person was first presented with the prenup and advised to seek independent counsel and the time the prenup is signed. California Family Code § 1615(c)(2).  It is always advisable to allow for more than 7 days between the presentation of the prenup/advisement to seek independent counsel and the signing so that this legal requirement as to timing never comes into question.  In conjunction with hiring independent counsel, this mandatory timing requirement dictates that the parties should plan well in advance before the prenup agreement is presented, reviewed, and signed.

3.                   If one party is without independent legal counsel, that party must be presented with the terms of the agreement in the language in which that party is proficient: If after being advised to seek independent legal counsel a party opts not to hire an attorney, that party must be presented a separate document written in the language in which that party is proficient that contains an explanation as to the terms and effect of the prenup agreement and those rights and obligations being affected by the prenup. California Family Code § 1615(c)(3).  The separate writing in the party’s language of proficiency must be provided prior to the signing of the prenup, and prior to or during the signing of the prenup, that party must sign a document acknowledging receipt of the explanation of terms, effect, and rights and obligations being affected.  This legal requirement relates to the voluntariness of the signing since one cannot know what they are agreeing to and giving up if they do not understand the language in which the agreement is written and do not have independent legal counsel.  Therefore, the person would not be voluntarily agreeing to its terms or voluntarily waiving their rights.  Voluntarily signing the prenup is a separate requirement under California Family Code § 1615(a)(1).  In order to ensure the party has had sufficient time to waive the right to independent counsel in a separate writing, to receive the explanation of the prenup agreement in their language of proficiency, and to sign another separate document acknowledging receipt of said explanation, advanced planning is a necessity before entering into the prenuptial agreement.

4.                   The two separate writings (waiving independent counsel and acknowledging receipt of the explanation of prenup terms) must be entered into without duress, fraud, or undue influence:  If one party decides to waive the right to independent counsel, such waiver triggers the requirement for two additional writings separate and apart from the prenup document.  Pursuant to Section 1615(c)(1), the party waiving independent counsel must sign a separate waiver document, and pursuant to Section 1615(c)(3), the party waiving counsel must sign a separate document to acknowledge receipt of the explanation of the terms of the prenup in a language in which that party is proficient.  The person waiving independent counsel must sign each of those documents free of duress, fraud, and undue influence.  California Family Code § 1615(c)(4).  To ensure all three of the documents are drafted and signed properly and in the correct sequence, planning sufficiently in advance is a must.

5.                   An agreement may be deemed unconscionable (i.e. unfair) at the time it is signed.  If one party claims he or she was not provided a “fair, reasonable, and full disclosure” of the assets or obligations of the other party, the prenup will likely be deemed invalid. California Family Code § 1615(a)(2).  The other option is to “voluntarily and expressly” waive the right to receive a full disclosure of the other person’s property and obligations.  It would be best for this waiver to be contained in a separate document from the premarital agreement.  Again, if making a full disclosure of assets and debts, or waiving the right to disclosure, this will require adequate time prior to signing the prenup.

Please note: The subject matter of a prenuptial agreement is not necessarily to protect one party’s assets, inheritance or other financial claims such as waiving spousal support.  The prenup can merely set the intentions and expectations of the parties during the marriage, e.g. whether one party will stay home with children and whether that affects the award or amount of spousal support in the event of divorce; whether separate or joint bank accounts will be used; whether inherited funds or property will remain the recipient’s separate property; or whether gift money from one party’s parents for the down payment of a home will affect proportionate ownership interests in the home. Discussing and planning around matters of this nature in advance of the marriage can make for a more successful marriage.  Do not think of the prenup as planning for divorce but putting parameters in place to ensure a more prosperous marital union.

Also, prenups can contract around the Family Code so long as the prenup terms do not promote divorce or violate the law or public policy. 

For additional information, or a free phone consultation regarding a prenuptial agreement, be sure to contact Diana Passadori of Passadori Family Law & Mediation at (628) 200-3065 or diana@passadoriflm.com.