Do I Need a Lawyer to Sign a Prenup?

Posted By admin, Uncategorized On September 1, 2020

A Bit About Prenups in California

In the 1980’s prenups, also called antenuptial or premarital agreements, gained in popularity in the US, but it said that the ancient Romans used prenuptial agreements. A prenup is a contract signed by people who are planning to marry.

The applicable laws in the Golden State stipulates the rights and obligations of domestic partners and spouses. Some rights can be renegotiated and modified by an agreement. Terms can even be decided for the eventuality of death. 

The agreed upon terms can indeed diverge from the current provisions under state legislation.  If this is something one or both people are looking to establish, then a prenuptial agreement makes sense.

Do I Need a Lawyer for a Prenup in California?

As with any other kind of contract, a person can create a prenuptial agreement by themselves.  If you choose not to get an attorney to take on this important work, then there are templates you can use.  The risk connected with this is that you could omit or misstate pertinent details that may make it impossible to later enforce the agreement. 

On that note, if you are the one who is on the receiving end of a prenup, then getting legal counsel before signing is wise.  

A Prenup That was Signed Without a Lawyer: Barriers to Enforcement

For a court to conclude that a signature on a prenup was really voluntary, the party who was on the receiving end of the prenup must have either spoken with their own counsel, or they must have, in writing, given up their right to have an attorney.

Pursuant to the family code, that party had to be allowed seven days or more to consult an attorney before signing the prenuptial agreement.  Perhaps the wife had no attorney representing her at signing.  In such a scenario, the judge may ask her to present a clear and correct explanation about the contents of the contract to show the court that she understood what she signed.

While neither party is mandated to have legal representation, courts tend to be less willing to enforce prenups that were signed by unrepresented parties. In cases like these, especially if the prenup looks like it is inequitable to the party that didn’t have representation or if there are suspicions of coercion or duress, a court could very well invalidate the prenup completely.

How Can I Be Sure That My Prenup is Valid?

For your prenup to be valid, the agreement must be in writing and be signed by both the parties who are getting married. The agreement can be modified or revoked after the couple has wedded. These changes also need to be in a written contract signed by both parties. It should be noted that because of the unique and intimate kinship between a man and his wife, just the slight aroma of a prenup can create suspicions of undue influence.

By law, this intimate, fiduciary connection between married persons “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts can penalize violations of fiduciary obligation in numerous ways. 

Please be advised that there aren’t any fiduciary relationships between people who are intending to get married but have not married as yet. A presumption of undue influence would not apply in this case.

Prenups in California: Scope and Limits

There are several key limits of the scope of prenups in California, including:

  • A child’s right to receive support cannot be overridden by a prenup
  • A judge will only consider a questionable spousal support clause if the affected spouse had the opportunity to get legal representation at signing.
  • If a judge’s view is that a waiver of spousal support is unconscionable, they have the authority to decide not to enforce it and award support. 
  • If any contract obligates anyone to commit crimes or otherwise break laws or public policy, it is invalid. This includes prenups.
  • Lifestyle clauses, such clauses that limit in-law visits, are customarily unenforceable by a court.

Uniform Premarital Agreement Act

To look through all the applicable statutes on prenups in California, please see The Uniform Premarital Agreement Act.