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California does not categorically require both parties to be represented by independent attorneys for every prenuptial agreement. However, California Family Code §§ 1615 and 1612 make independent legal representation an important component of both the enforceability of a premarital agreement and, in particular, any provision affecting spousal support.
California Family Code § 1615: Independent Counsel and Voluntariness
Under California Family Code § 1615, a premarital agreement is unenforceable if the party against whom enforcement is sought proves that the agreement was not executed voluntarily or that the agreement was unconscionable when executed and the statutory requirements concerning financial disclosure and knowledge were not satisfied.
Section 1615 also establishes specific safeguards for determining whether a premarital agreement was entered into voluntarily. Among other requirements, the party against whom enforcement is sought must have been represented by independent legal counsel when the agreement was signed or, after being advised to obtain independent counsel, must have expressly waived representation in a separate writing.
California law also generally requires at least seven calendar days between the time the party is first presented with the final agreement and the time the agreement is signed.
Accordingly, while a party may be permitted to waive independent counsel in certain circumstances, having separate attorneys involved in the negotiation and execution of a California prenup can significantly reduce later disputes concerning voluntariness, understanding, and enforceability.
California Family Code § 1612: Spousal Support Is Different
A prenup containing a spousal support waiver or limitation presents an additional issue.
Under California Family Code § 1612, a provision modifying or eliminating spousal support is not enforceable against a party who was not represented by independent counsel at the time the agreement containing the provision was signed.
Even where both parties had independent counsel, a spousal-support provision may nevertheless be unenforceable if the provision is unconscionable at the time enforcement is sought.
This distinction is important. Although California law may permit a party to waive independent counsel for purposes of entering into a premarital agreement under the circumstances specified in § 1615, that waiver does not make a spousal-support waiver enforceable against an unrepresented party under § 1612.
For this reason, when a California prenuptial agreement includes a waiver or limitation of future spousal support, both parties should be represented by their own independent attorneys.
Even though there may be ways around each side requiring independent counsel, I would not sign a prenup unless both sides were represented by an attorney in good standing with the California state bar.
Both sides need their own attorney so that it is understood that neither side is using coercion, undue influence, or duress in the transaction and the transaction is long arm. Even though there may still be coercion and undue influence even with an attorney it is deemed to have occurred without representation on both sides. So, in the abundance of caution if you are seeking a prenup in California then be sure there is a drafting attorney who drafts the prenup and a reviewing attorney who reviews the prenup.
When preparing a prenup it’s important to have all the bases covered so that there is no ground from which the court can find a prenup to be invalid.