Does a Prenup Have to Be Signed by a Lawyer?

Posted By admin, Uncategorized On August 31, 2020

Introduction to Prenups in California

In the 1980’s prenuptial agreements, also referred to as antenuptial or premarital agreements, grew in popularity in the United States, but purportedly, the ancient Romans used them. 

A prenup is an agreement signed by two people who intend to get hitched.

The relevant statutes in the Golden State outline the rights and obligations of married people. Some of these can be renegotiated and re-engineered in a contract. Spouses can decide on some arrangements in advance. Terms can even be planned out for the eventuality of the unexpected death of a spouse. 

The agreed upon stipulations can diverge from the default ones under the present state legislation.  If this is something one or both people want to put in place, then a prenuptial agreement is the option that makes plenty of sense.

Does a Prenup Have to Be Signed by a Lawyer?

The quick answer is no.  A prenup does not have to be signed by a lawyer.  In fact, as with any contract, you can even draft your own prenuptial agreement without an attorney using a template.  The risk in this is that you may overlook crucial stipulations that make it impossible to later enforce your prenup. 

If you are on the receiving end of the prenup, then having legal counsel at the time you sign is wise, although your lawyer is not required to sign it themselves.  

How Can I Be Sure if My Prenup is Valid?

In order for a court to deem a  prenup valid, it must be in writing and signed by both spouses. The agreement can be modified or revoked after the date of marriage. Such changes also necessitate a written contract signed by both parties. Further, because of the unique and intimate link between married couples, the very existence of a prenup can invoke suspicions of undue influence.

The law says that the intimate, fiduciary obligation between married people “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts are authorized  to penalize any violation of fiduciary obligation. 

Be advised that there is no fiduciary relationship between fiances. A presumption of undue influence would not apply to such situations.

Enforcing Your Prenup 

For a court to be certain that a signature on a prenup was truly voluntary, the party who was presented with the prenup must either have consulted with their own legal counsel, or they must have, in writing, forfeited their right to an attorney.

Pursuant to the California code, the future spouse should have been allowed a minimum of seven days to speak with an attorney before signing a prenuptial agreement. For instance, if one of the parties had no lawyer representing her at signing, then he or she must be able to present a clear and correct explanation as to the contents of the contract to show that they understood what they signed.

Neither party is obligated to have legal representation.  That fact notwithstanding, courts tend to be less willing to enforce your prenup if it was signed by a party that didn’t have legal representation. In such scenarios, especially if the prenup is skewed against the party that didn’t have an attorney or if there are questions about coercion or duress, a court might invalidate the prenup entirely.

The Limited Scope of Prenups

Some key limits of the scope of your prenup:

  • A child’s legal right to receive support cannot be hindered by a prenup
  • A judge will only enforce spousal support clauses if the affected spouse had the chance to get legal representation at signing.
  • If the courts find that a waiver of spousal support is unconscionable, they have the right to decide not to enforce it and award some support. 
  • If a prenup obligates one or both of the spouses to commit crimes or otherwise breach laws or public policy, it is invalid. 
  • Lif-style clauses, like clauses dictating when and how often in-laws can visit, normally cannot be enforced by courts.

The Uniform Premarital Agreement Act

Please refer to The Uniform Premarital Agreement Act for all of the applicable statutes relating to prenups in California.