Court of Appeal Clarifies Seven-Day Waiting Period for Premarital Agreements

California Family Code §1615 outlines the factors a court will consider when deciding whether to enforce a premarital agreement.  If the court finds that, among other reasons, the agreement was not executed voluntarily or if the agreement was unconscionable (a fancy word for unreasonable), it will void a premarital agreement.

Section 1615(c) states that a premarital agreement will not be deemed voluntary unless the court makes three findings; one of them being that the party against whom enforcement is sought had not less than seven calendar days between the time the party was first presented with the agreement and advised to obtain a lawyer and the time the agreement was signed.  The question most recently before the First Appellate Court was whether section 1615(c)(2) applied to a party who was represented by an attorney from the outset.

In Marriage of Cadwell-Faso & Faso, 191 Cal. App. 4th 945 (2011), husband (H) and wife (W) married in 2006.  H was a wealthy, retired businessperson and W owned and operated her own business.  Prior to their marriage, H’s attorney drafted a premarital agreement and presented it to W and advised her to seek independent counsel.  W was unhappy with the agreement and her attorney subsequently drafted four separate addenda to which H disagreed.  W faxed a goodbye letter to H following their inability to come to an agreement.  Following further discussion, W’s attorney drafted a fifth addendum and faxed it to H.  Six days later, H and W signed the agreement and were married

Eighteen months later, H and W sought dissolution of marriage.  H asked the court to void the fifth addendum because he did not have seven days between the time of representation and execution and the agreement was thus involuntary per §1615(c)(2).  The trial court ruled in H’s favor, finding that the requirements of §1615(c) were mandatory and the addendum was thus invalid.   W appealed and the appellate court reversed.  In its decision, the court could not determine from the text of the statute alone whether the seven-day rule was confined to unrepresented parties.  Therefore, the court looked to the legislative history of §1615 and found that the legislature was concerned with situations where one party was not represented by counsel, not where counsel has been present from the start.  The appellate court thus held that both the premarital agreement and the addendum were enforceable against H where he was represented by counsel throughout the premarital agreement process.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling premarital agreements. If you are contemplating marriage, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization