Do You Need a Lawyer for a Prenup?

Posted By admin, Uncategorized On August 31, 2020

Intro to Prenups

Prenuptial agreements, also called antenuptial or premarital agreements, were only popularized in the US as recently as the 1980s, but they are said to date as far back as ancient Rome. 

Essentially, a prenup is a contract signed by two people who intend to get married.

The relevant laws in the Golden State dictate the rights and obligations of spouses (and domestic partners). Some can be renegotiated and modified in an agreement. Terms can also be put in place for the possibility of the death of one or both spouses. 

Most certainly, the terms in a prenup can diverge from the default terms under the current state legislation. 

Do You Need a Lawyer for a Prenup?

The short answer is that you don’t need a lawyer for a prenup. You can write a prenuptial agreement without legal counsel, just as you can write any other contract.  Nevertheless, you could make an error or omission in the absence of a well-informed attorney that may make it impossible to later enforce. 

Prenups in California: Signing, Validating and Enforcing with Legal Counsel

As stated earlier, you can create a prenup by yourself (at your own peril).  That said, getting your prenup in California signed, and later enforced, may require legal counsel.  Mostly, courts view premarital agreements in a favorable light. That fact notwithstanding, there are several scenarios in which your prenup cannot and will not be enforced.  

For example, if any suspected coercion at signing can be proven to the court, then the agreement is invalid.

For the court to determine whether a signature is authentically voluntary, the judge would want to know if the person who was asked to sign the prenup either consulted with a lawyer of their choosing, or waived their right to have a lawyer in writing.

By law, that person must have been allowed at least seven days to obtain their own legal representation before signing. If, for example, a husband doesn’t have a lawyer at signing, he has to be able to give a full explanation of the contents of the contract to show that he knew what he was signing.

The Authority of Your Prenup in California

A prenup can deal with such issues as the interests of the future spouses in their separate and community real estate holdings. These interests can include the right to sell, lease, buy, or mortgage property. 

Some important limitations to the authority of prenups in California:

  • Lifestlyle Clauses in Prenups Life-style clauses, such as clauses dictating how often you have sex or limiting visits by in-laws normally cannot be enforced in a court of law.
  • Alimony/Spousal Support If a judge perceives that a waiver of spousal support is unconscionable, they can choose not to uphold it and award support. 
  • Additionally,  judges will not enforce clauses that limit spousal support if the spouse whose rights have been minimized didn’t have a chance to get their own attorney at the time they signed.
  • Child Support The Family Code states that “[t]he right of a child to support may not be adversely affected by a premarital agreement.” 
  • Requirement to Commit a Crime Any contract that requires someone to commit a criminal offense or otherwise violate laws or policies cannot be valid. 

How Can I Be Sure That My Prenup is not Invalid?

For a prenup to be valid, it needs to be in writing and signed by both the husband and the wife. The contact can be modified or revoked after the couple has already married. These kinds of changes also necessitate a written agreement signed by both spouses. 

Undue Influence in Prenups

Notably, because of the special, intimate nature of the connection between husbands and wives, the very suggestion of a prenup can bring about suspicions of undue influence.

The law stipulates that the intimate, fiduciary connection between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” The family court has the authority to penalize any violation of the marital fiduciary obligation. 

There is no fiduciary relationship between people engaged to be married. Therefore, the presumption of undue influence would not apply.