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Are There Any Restrictions On Prenuptial Agreements?

The parties can agree upon almost anything except for child custody and child support amounts, because those remain within the discretion of the court if and when the parties get a divorce. The courts are not bound by such agreements in a prenuptial agreement.

Does Each Party Need Their Own Legal Counsel?

California requires that parties who want to waive spousal support each be represented by legal counsel. The exception is if the attorney for one represented party signs a certificate stating that he or she had explained the prenuptial agreement and specifically the spousal waiver provisions to the other party in detail and that after that explanation, he or she agrees to go forward with the agreement and waive spousal support.

However, it is very unusual for an attorney to agree to sign such a certificate where he is effectively counseling both parties n waiving spousal support. This would open the attorney to a malpractice claim, because once the divorce occurs and the waiving party realizes he or she had waived spousal support, and the waiver is based upon the advise that he or she got from the other party’s attorney, the tendency is to try to break the spousal support waiver. If he or she is successful in breaking it, then the represented party holds a claim against the attorney. As a practical matter, both sides have to be represented by legal counsel any time they want to waive spousal support. It is my practice to require that both parties to a prenuptial agreement be represented by legal counsel, even where no spousal waiver is involved.

Is There A Time Limit For Negotiating The Prenuptial Agreement?

Another restriction imposed by California law is that the proposed prenuptial agreement has to be delivered to the other party at least seven days prior to the wedding, in order to give the other party time to review it, seek legal counsel, and if necessary, negotiate terms and make a clear-headed choice as to whether they want to sign it or not. In the past one party (usually the wife) would typically be presented with a prenuptial agreement almost literally on the church steps and would be required to sign as a condition of the wedding going forward. The legislature concluded that the wife did not really have a reasonable opportunity to object to or to negotiate the agreement and was coerced into signing by the husband, so it was not really a free choice on the part of the wife.

This happened with baseball player Barry Bond’s case before the new law came in. The court enforced the agreement which was basically imposed on his new wife, who at the time did not speak English well and did not have any particular financial resources. In that case, the court found that she signed it voluntarily and enforced the agreement since it was a contract between two consenting adults. This particular case spurred the legislature to revise the law so that it leveled the playing field between the husband and wife, because typically the husband has the assets and is the one pushing for a prenuptial agreement

For more information on Restrictions In Prenuptial Agreements, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (916) 635-0302 today.