Can You Sign a Prenup Without a Lawyer?

Posted By admin, Uncategorized On August 31, 2020

A Word About Prenups

Prenuptial agreements, also called antenuptial or premarital agreements, became popular in American culture in the 1980’s.  It said that the ancient Romans used premarital agreements centuries ago as well. Basically, a prenup is a contract signed by two people who intend to be wedded to each other.

The material statutes in the Family Code of the Golden State outline the rights and obligations of spouses and domestic partners. Some of these can be renegotiated and rewritten by a contract. Spouses-to-be may decide on some details in advance of marrying. Terms can even be laid out for the eventuality of the untimely death of a spouse. 

The agreed upon terms can diverge from the default provisions under the present state legislation.  If this is something one or both people want to do, then a prenuptial agreement is the option that makes most sense.

Can You Sign a Prenup Without a Lawyer?

As is the case with any contract, it is possible to both write a prenuptial agreement by yourself and to sign one.  Especially if you are on the receiving end of the prenup, having legal counsel at the time you sign is wise but not required in all jurisdictions.  

Enforcing Prenups That Were Signed Without a Lawyer

For a judge to determine that the signatures on a prenup were voluntary, the party who was presented with the prenup must have either contacted and met with their own lawyer, or they must have, in writing, voluntarily forfeited their right to have an attorney.

According to the California code, said party must have been given at least seven days to consult an attorney before signing a prenuptial agreement. In a case where one party had no lawyer representing him or her at signing, that party must be able to present a clear and correct explanation as to the stipulations of the contract to show that they understood what they were signing.

While neither party is obligated to have legal representation according to California laws, courts are generally iffy about  enforcing a prenup signed by a person that didn’t have independent legal representation. In cases like these, especially if the wording in the prenup appears to be unfair to the party that didn’t have a lawyer or if there is a question about coercion or duress, a court might invalidate that prenup altogether.

What Criteria Characterize a Valid Prenup?

For your prenup to be considered valid, the agreement must be in writing and be signed by both parties. The parties are at liberty to sign without a lawyer, but as mentioned above, the absence of a lawyer can raise questions when it comes time to enforce its provisions.  The prenup can later be modified or revoked after the couple has already married. Such changes also necessitate a written agreement signed by both of the spouses. It is worthy of note that because of the unique and intimate kinship between husbands and wives, the mere mention of a prenup can bring about suspicions of undue influence.

The law provides that the intimate, fiduciary link between husbands and wives “imposes a duty of the highest good faith and fair dealing on each spouse.” Family court judges have the authority to penalize any violation of fiduciary obligation. 

 

The Power of Prenups in California

Some key limits of the power of prenups in California:

  • The rights of children to receive support cannot be negatively affected by a prenup
  • A family court will only enforce clauses that minimize or rescind spousal support below legal levels if the affected spouse had the chance to get legal representation at signing.
  • If the judge determines that a waiver of spousal support is unconscionable, they have the authority to decide not to enforce it and award support. 
  • If there are clauses in the prenup obligating one or both signers to commit crimes or otherwise break laws or public policy, the prenup is invalid. 
  • Lifestyle provisions, like clauses those dictating how much sex is required, normally cannot be enforced by courts.

The Uniform Premarital Agreement Act

You may view all of the applicable statutes relating to prenups in California state by referring to The Uniform Premarital Agreement Act.