Can I Sign a Prenup Without a Lawyer?

Posted By admin, Uncategorized On September 1, 2020

About Prenuptial Agreements

Back in the 80’s prenuptial agreements, also known as antenuptial or premarital agreements, grew popular in American culture. Referred to as a prenup for short, a prenuptial agreement is a contract signed by two people who intend to marry.

The relevant statutes in the Golden State lay out the rights and obligations of domestic partners and spouses. A few of these rights can be renegotiated and modified by an agreement. Spouses may decide on certain terms in advance. Stipulations can even be decided for the eventuality of the untimely death of one of them. 

The stipulations in a prenup can diverge from the default statutes under the present state legislation.  If this is something one or both fiances are interested in, then a prenuptial agreement is the route to accomplishing it.

Can I Sign a Prenup Without a Lawyer?

If you are on the receiving end of the prenup, then having legal counsel at the time you sign is wise.  That said, you are at liberty to waive your right to an attorney and sign the prenup without a lawyer at your own risk.

Signed Without a Lawyer: Enforcing a Prenup 

For the court to say that a signature on a prenup was actually voluntary, the party who was presented with the prenup must have either talked to legal counsel of their own choosing, or they must have, in writing, forfeited their right to representation.

According to California law, said person had to be allowed a minimum of seven days to consult an attorney before they sign a prenuptial agreement. Let’s say Serenity and Josh are engaged to be married.  Josh’s lawyer draws up a prenup and sends it to Serenity to sign.  If she has no lawyer to represent her, a court may ask her to present a clear and complete explanation as to the contents of the contract to show that she understood what she was signing.

Although the law does not mandate that either party is obligated to have legal representation, courts will more heavily scrutinize a prenup signed by a party that didn’t have independent legal representation. In scenarios like these, especially if the prenup contains enough clauses that are unjust to the party that didn’t have a lawyer or if there are concerns about coercion or duress, a court might invalidate the prenup altogether.

Can I Be Sure if My Prenup is Valid?

For a prenup to be valid, it must be in writing and signed by both parties. The agreement might later be modified or revoked after the couple has already married each other. Changes like these also require a written contract signed by both of the spouses. It is worth noting that because of the unique and intimate kinship that naturally exists between married couples, the mere discussion of a prenup can raise suspicions of undue influence.

The law states that the intimate, fiduciary link between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts retain the right to penalize any violation of fiduciary obligation. 

To be clear, there aren’t any fiduciary relationships between couples who have not married yet. The presumption of undue influence would not apply to that case.

The Scope of a Prenup in California

Some key limits of the scope of a prenups are:

The right of a child to receive support cannot be interfered with affected by a prenup

  • A judge will only enforce clauses that reduce spousal support below what the law provides if the spouse who is affected had the chance to get legal representation at signing.
  • If the courts determine that a waiver of spousal support is unconscionable, they have the power to decide not to enforce it and award support. 
  • If the prenup requires one or both signers to commit crimes or otherwise break laws or public policy, it is invalid. 
  • Life-style clauses, like clauses dictating details of sexual relations, normally cannot be enforced by courts.

Uniform Premarital Agreement Act

Take a look at all the applicable statutes connected to prenups in California by referring to The Uniform Premarital Agreement Act.