An Ounce of Prevention

"An ounce of prevention is worth a pound of cure."

How does this old adage translate into family law?

Well, if you are thinking about entering into a premarital agreement, it means thinking through the terms of the agreement and following the present day protocol or law in your state to a "T."

Before asking an attorney to draft a prenuptial, ask yourself, what are your goals?  What are you trying to do? Whom and what do you want to protect?  What are you willing to give to get such protection?

Your agreement should not be boilerplate language because chances are your circumstances and relationship are not boilerplate.

You should be prepared to discuss everything from your educational background to your assets and debts with the attorney who will draft or review such an agreement with your goals and interests in mind.

Your agreement requires two legal elements to survive:

1. Both parties must execute the written agreement voluntarily, and
2. The agreement cannot be unconscionable when entered.

VOLUNTARILY

Both parties must enter into the agreement voluntarily and without duress, fraud, or undue influence.

An agreement is unenforceable if it was not execute voluntarily unless the party against whom enforcement is sought was represented by independent legal counsel or expressly waived in writing such representation after being advised to seek such counsel. 

Also, an agreement is not voluntarily executed  unless the party against whom enforcement is sought had not less than 7 days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

Lastly, an agreement is not voluntarily executed unless the party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the agreement's terms and effect as well as the rights and obligations he/she is giving up by signing the agreement.  The explanation of the party's rights and the agreement itself must be in the unrepresented party's proficient language.  This explanation of the rights and obligations relinquished must also be made in writing and delivered to the party before signing the agreement.  The unrepresented party must also execute a declaration that he/she received the information required by law.

Thus, it is highly recommended that both parties each have his and her own attorney at the time of signing the agreement (this is not a conspiracy by attorneys but obviously a measure of prevention).

UNCONSCIONABLE

In general, an unconscionable agreement is so unfair or unreasonable as to shock the average person.  A court will determine whether the agreement is unconscionable if it is later contested.

An agreement is unenforceable if it was unconscionable when entered and before execution of the agreement, the party against whom enforcement is sought was not provided a fair, reasonable, and full disclosure of the other party's property or financial obligations or did not voluntarily and expressly waive the right to such disclosure.

Thus, the parties should expect to disclose all assets and debts.

In sum, following the California Family Law code section 1615 to the Nth degree will provide for an enforceable premarital agreement based on the ounce of prevention needed to withstand what the future may bring.