Print Page - Premarital Agreements

Here is a quick segment of SIMPLE CALIFORNIA COMMUNITY PROPERTY OUTLINE.

PREMARITAL AGREEMENTS

Premarital agreements must be written and entered into voluntarily based on full disclosure of the financial resources and obligations of the opposing party with fair and reasonable terms. (FC 1611, 1615.) An unconscionable premarital agreement will not be enforceable. (FC 1615.)

Further, by law (FC 1615c) a premarital agreement will NOT be deemed to be executed voluntarily unless the court finds in writing or on the record that the party to be bound:

1. Was represented by independent legal counsel or expressly waived, in a separate writing, the right to representation;
2. Was presented with the proposed agreement and advised to seek legal counsel at least seven days before the agreement was signed;
3. Was, if unrepresented by legal counsel, fully informed of the terms and effect of the agreement in writing in a language in which the party was proficient; AND
4. Was free from duress, fraud or undue influence and had the legal capacity to enter into the agreement.

For example: Bambi invites 500 guests to her lavish wedding and then days before the ceremony Brunehilda, mother of the sniveling groom, Bevis, threatens to call the wedding off unless Bambi signs a premarital agreement. Bambi signs it immediately. But it will not be enforceable against Bambi because she did not take 7 days to consider it between the time it was presented to her and her signing. Further, she did not waive her right to counsel in a separate writing, was not advised of her right to counsel, was not fully informed of the terms and effects, and was acting under duress and undue influence. (The irony here is that immediately signing a premarital agreement as soon as it is presented to makes it unenforceable.)

A premarital agreement only becomes effective upon marriage. (FC 1613.) And, if the marriage is later determined to be void a premarital agreement is only enforceable to the extent necessary to avoid injustice. (FC 1616.)

After marriage a premarital agreement can be amended or revoked only by a written agreement signed by the parties. (FC 1614.)

If a premarital agreement is enforceable under FC 1615 it may control any of the following, pursuant to FC 1612:

*Rights in all separate and marital property of the spouses;
*Rights to acquire, convey, control or encumber property;
*Disposition of property in dissolution or at death;
*Making of wills and creation of trusts;
*Life insurance benefits; and
*Choice of law as to construction of the agreement.

But the rights of a child to receive support cannot be adversely controlled by a premarital agreement. (FC 1612b.)

Further, the rights of a spouse to receive spousal support cannot be controlled by a premarital agreement if 1) the spouse was not represented by independent counsel at the time of the agreement, or 2) the provisions of the agreement are unconscionable, or 3) if enforcement of the agreement would be unconscionable given the circumstances of the spouses. (FC 1612c.)

If a legal defense based on a statute of limitations is raised in an action related to a premarital agreement, the statute is tolled during the term of the marriage. But equitable defenses including laches and estoppel may still be raised. (FC 1617.)

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