A premarital agreement (prenup) isn’t enforceable against a party who didn’t enter into it voluntarily. Fam C §1615(a)(1). Here’s how you can ensure that a question of duress won’t derail your prenup.
To deem a prenup voluntarily executed, courts will look to the following factors (Fam C §1615(c)):
- Each party had independent counsel involved or expressly waived it. Make sure that the party against whom enforcement is sought was represented by independent legal counsel when the agreement was signed or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
- Each party had a week to mull it over. The party against whom enforcement is sought must have at least 7 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. See Marriage of Clarke & Akel (2018) 19 CA5th 914, 922. It’s good practice to “serve” the final version of the premarital agreement on the reviewing party at least 7 days before it’s signed, and make no changes to the agreement after it’s served.
- Each party was fully informed about what’s in the prenup. The party against whom enforcement is sought, if unrepresented by legal counsel, must have been 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 was conducted and in which the agreement was written.
- Each party acknowledged being fully informed. The explanation of the rights and obligations relinquished must have been memorialized in writing and delivered to the unrepresented party before the premarital agreement was signed, and before signing, the party must have executed a document declaring that he or she received the required information and indicating who provided it.
- Each party had capacity and weren’t overly pressured. The agreement and the writings can’t have been executed under duress, fraud, or undue influence, and the parties must have had capacity to enter into the agreement.
The court’s not limited to these factors—it may consider any other factors it deems relevant in determining whether to enforce or set aside the agreement. But covering all of these bases will definitely make it very likely the prenup provisions will stand up to a defense that they were entered into involuntarily.
For expert guidance in drafting enforceable premarital agreements, including a complete sample agreement, turn to CEB’s California Marital Settlement and Other Family Law Agreements, chap 17. And on navigating through cultural gridlocks and incorporating traditions into premarital agreements, check out CEB’s program The Global Couple & Premarital Agreements: Legal and Cultural Issues to Consider, available On Demand.
Other CEBblog™ posts you may find useful:
- Do This Before Getting a Mediator Involved with a Prenup
- Love and Marriage…and Prenups
- Like Cheese, Foreign Prenups Don’t Travel Well
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