Family Code Section 1615 delineates the parameters for a Court to examine when confronted with a request to determine the validity of the pre-nuptial agreement. That section provides that a pre-nuptial agreement is unenforceable if either (1) the party against whom enforcement is sought did not execute the agreement voluntarily; or (2) the agreement is unconscionable.
Making Sure the Agreement was Executed Voluntarily
In determining whether the agreement was executed voluntarily, the Court shall decree the agreement was involuntary unless the party against whom enforcement is sought, (1) received independent legal advice regarding the agreement, (2) had not less than seven calendar days from the time he/she was presented with the agreement and when it was signed, (3) if unrepresented by independent counsel fully informed of the terms and basic effect of the agreement, (4) the agreement was not executed under fraud/duress/undue influence and that parties did not lack capacity to enter into the agreement and (5) any other facts the Court deems relevant.
It is important to scrutinize the language guiding the Court. The Court shall set-aside the pre-nuptial agreement, unless the requirements of Family Code ? 1615(c) are met. This affirmatively places the burden on the party moving to enforce the agreement that certain procedural safeguards were put in place at the time the agreement was executed.
Representation by Independent Counsel
A fertile ground for the set-aside of a pre-nuptial agreement is the requirement that one party be represented by independent counsel in the negotiation and execution of the agreement. Although this requirement can be waived in a signed writing, it is generally a good practice to have the future spouse against whom the agreement is enforced to seek and consult independent counsel. If the agreement is especially complex in nature with vast assets, it is best to insure that the agreement is explained completely so it will be deemed "voluntary" when enforced.
The Unconscionable Pre-Nuptial Agreement
In determining whether the pre-nuptial agreement is unconscionable, the Court must examine whether, at the time the pre-nuptial agreement was signed, the party against whom enforcement is sought, (1) was provided a fair/reasonable disclosure of property, (2) did voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations, and (3) did have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. FC ? 1615(b). Generally, this requires the party who seeks enforcement to validate that all material assets to be kept separate were accurately and fully disclosed. Obviously, the Court will not enforce an agreement where one spouse waived his or her interest in an asset that he or she did not even know about.
Pre-Nuptial Agreements, Child Support and Spousal Support
Finally, the most important issue to consider in the execution of a pre-nuptial agreement is the propriety of including waivers of child and/or spousal support. A pre-nuptial agreement cannot, under any circumstances, waive child support. If the pre-nuptial agreement purports to waive one spouse's right to collect spousal support, the person waiving the right to support must have met with independent counsel to discuss the agreement prior to its execution, or the waiver is invalid. This requirement cannot be waived. Second, and more importantly, the Court can decline to adhere to a waiver of spousal support if, at the time of enforcement of the agreement, the waiver of spousal support is deemed "unconscionable." Typically, the waiver will be deemed unconscionable if the spouse requesting support was a "homemaker," is disabled or otherwise has no work experience after a marriage of long duration.
The information and opinions expressed above are not intended to be relied upon as legal advice, or to establish an attorney/client relationship. If you are involved in a Family Law matter, you should seek competent counsel.