How to create a valid PRENUPTIAL AGREEMENT

Image

As summer comes slowly to an end, prenuptial agreements are still a hot item. Clients would like to get married and would like to create a valid prenuptial agreement. Here is how to create a valid agreement that will be upheld in court.

Let's get started…

  • A prenuptial agreement is regulated by Family Code section 1611 and needs to be in writing and signed by both parties. I personally prefer that the agreement be notarized. Why? Notarization ensures that neither spouse can later say "I have not signed this agreement, someone else did” or “My signature was forged." So, getting the agreement notarized is useful as parties have to show their ID, and the notary confirms that the person who is signing is the correct person. Therefore, there is no possible claim later that, "It wasn't me."
  • The agreement doesn't have to have consideration like the usual civil agreement. Meaning there does not have to be an exchange of money or anything like that. It can be a one-sided agreement. While this can potentially lead to other problems later on, no performance of consideration is necessary.
  • A prenuptual agreement can be revoked by another written agreement later on if both couples decide to amend.
  • The agreement needs to be entered voluntarily and is regulated in Family Code section 1615. The leading case concerning voluntarism is the Bonds California case of appeal. This case determined that "voluntarily" means that the spouse who is negotiating has the requisite level of education and if not then has an independent counsel present. It is extremely important to have independent counsel on each side. Personally, I will not draft a prenuptial agreement if the other side is unrepresented, because more likely than not, the prenuptial agreement will not be valid. There are several issues with not having two independent counsel present. For example, if the other side is unrepresented, the other side will be able to say that they didn't know what they were signing and the prenuptial agreement will be invalid.
  • The Family Code section 1615 says that if the other side is unrepresented, then I, as a lawyer from drafting side, have to take the extra step of writing seperately. I have to create a separate letter for the other party which states that I advised them to seek an independent counsel and that they waived that right in a separate document. Then I have to prepare a memorandum of understanding regarding the terms of the agreement which they have to sign an acknowledgement of receipt for. As you can see, there are many extra steps involved when a party is unrepresented. Therefore it's much faster and ethical for both parties to be represented.
  • Next, the agreement has to have no significant edits made to it. For example, a name correction is allowable, but significant changes cannot be made to the agreement at least seven days prior to signing the final version. This aspect of creating a prenuptial agreement is very important. Before 2020, parties were allowed to make significant changed within seven days of final signing as long as both parties were independently represented by counsel. However, currently, this leniency does not apply and the seven day rule is still in effect and needs to be followed. The agreement needs to withstand seven days, untouched. This means parties negotiated the agreement and then seven days before signing, do not touch it, then sign it.
  • One last important piece of information is that the court always has the discretion to set aside an agreement if there was duress, fraud, or undue influence. If either party was forced to sign the agreement this could lead to a set-aside, which gives the court the authority to consider financial disclosures or an assets and debt sheet as part of the agreement.
  • To wrap up, it is important to know what you and your spouse or future spouse are signing. This means that having independent counsel, financial disclosures, and a seven day waiting period are imperative to having a valid and enforceable prenuptial agreement. Personally, I would not represent a client who was about to get married in less than a month, because it does not give sufficient time to prepare the agreement, exchange financial disclosures, negotiate, and follow the seven days untouched rule. Not having sufficient time to complete the prenuptial process puts everyone under duress.

As summer comes slowly to an end, prenuptial agreements are still a hot item. Clients would like to get married and would like to create a valid prenuptial agreement. Here is how to create a valid agreement that will be upheld in court.

Let's get started…

Deciding to Use Mediation or Not

Are you thinking that mediation is the right choice for your Contact our office to begin.

  • A prenuptial agreement is regulated by Family Code section 1611 and needs to be in writing and signed by both parties. I personally prefer that the agreement be notarized. Why? Notarization ensures that neither spouse can later say "I have not signed this agreement, someone else did” or “My signature was forged." So, getting the agreement notarized is useful as parties have to show their ID, and the notary confirms that the person who is signing is the correct person. Therefore, there is no possible claim later that, "It wasn't me."
  • The agreement doesn't have to have consideration like the usual civil agreement. Meaning there does not have to be an exchange of money or anything like that. It can be a one-sided agreement. While this can potentially lead to other problems later on, no performance of consideration is necessary.
  • A prenuptual agreement can be revoked by another written agreement later on if both couples decide to amend.
  • The agreement needs to be entered voluntarily and is regulated in Family Code section 1615. The leading case concerning voluntarism is the Bonds California case of appeal. This case determined that "voluntarily" means that the spouse who is negotiating has the requisite level of education and if not then has an independent counsel present. It is extremely important to have independent counsel on each side. Personally, I will not draft a prenuptial agreement if the other side is unrepresented, because more likely than not, the prenuptial agreement will not be valid. There are several issues with not having two independent counsel present. For example, if the other side is unrepresented, the other side will be able to say that they didn't know what they were signing and the prenuptial agreement will be invalid.
  • The Family Code section 1615 says that if the other side is unrepresented, then I, as a lawyer from drafting side, have to take the extra step of writing seperately. I have to create a separate letter for the other party which states that I advised them to seek an independent counsel and that they waived that right in a separate document. Then I have to prepare a memorandum of understanding regarding the terms of the agreement which they have to sign an acknowledgement of receipt for. As you can see, there are many extra steps involved when a party is unrepresented. Therefore it's much faster and ethical for both parties to be represented.
  • Next, the agreement has to have no significant edits made to it. For example, a name correction is allowable, but significant changes cannot be made to the agreement at least seven days prior to signing the final version. This aspect of creating a prenuptial agreement is very important. Before 2020, parties were allowed to make significant changed within seven days of final signing as long as both parties were independently represented by counsel. However, currently, this leniency does not apply and the seven day rule is still in effect and needs to be followed. The agreement needs to withstand seven days, untouched. This means parties negotiated the agreement and then seven days before signing, do not touch it, then sign it.

Share this Post