California Pre/Post Marital Agreements: January 2003 Summary

Legal Developments

Legislation effective 1/1/2002 in response to In re Marriage of Bonds (2000)

• Advisement to seek legal counsel: Family Code §1615 (c)(1) was added which deems an agreement not to have been executed "voluntarily" unless "the party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel."

• Time to study agreement: Family Code §1615 (c)(2) requires the court to "deem" that the Agreement was not executed voluntarily unless the party against whom it is going to be enforced had "not less than seven calendar 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." This applies whether the party is represented or not.

• Advising as to effect of agreement: Family Code §1615 (c)(3) requires that an unrepresented party be "fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement." This must be in writing and presented in advance of the signing of the Agreement.

• Proficiency in English: Family Code §1615 (c)(3) requires that the written explanation and agreement be in a language in which the unrepresented party is "proficient."

• Full disclosure of assets and debts (unless waived): Family Code §1615 (a)(2)(A) was amended to state that one of the requirements for showing unconscionability is the failure of the other party to provide: "a fair, reasonable and full disclosure of the property or financial obligations."

Legislation effective 1/1/2002 in response to In re Marriage of Pendleton and Fireman (2000):

No waivers or limitations of spousal support are enforceable unless the party against whom they are to be applied was represented by independent counsel at the time the agreement containing the provision was signed. In addition, the limitations are unenforceable if they are unconscionable at the time of enforcement. Fam. Code §1612.