Unenforceable Agreements and Unconscionability and Voluntariness

Under Family Code Section 1615 Courts will scrutinize prenuptial agreements and terminate their validity if certain criteria are met, such as:

1) That party did not execute the agreement voluntarily. That means that a party that signed the agreement prior to marriage did so by force or by means not in their volitional control.

2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

  1. That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. Disclosure is the cornerstone of dissolution cases in California and without disclosing ones assets and liabilities the other party is significantly at a disadvantage.
  2. If the other party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party. If a party is going to waive and disclosure they must have signed a waiver to do so.
  3. That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. This means that if there was not disclosure or the other party was hiding assets and or liabilities this could effect the contract entered into.

A premarital agreement is not executed voluntarily unless the court finds in writing or on the record all of the following:

  1. 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. It is very important that the other party seek an attorney to explain in detail the prenuptial agreement.
  2. The party against whom enforcement is sought 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. There must be enough time between the marriage and the signing and adequate review of the prenuptial agreement to create a level playing field.
  3. The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights. If a person so chooses to represent themselves in the entering into an agreement of the prenuptial agreement they must have been educated about content of the agreement before signing.

    In addition they must have been informed about the obligations he or she was giving up by signing the agreement.

    More importantly the party who signs the agreement without a lawyer must be proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written.

    This waiver of an attorney must be memorialized in writing. This separate document must explain the rights and obligations relinquished and be put in writing and delivered to the party prior to signing the agreement.

  4. Finally the agreement and any additional waiver of not having an attorney must not be executed under duress, fraud, or undue influence. Also the party must have the capacity to enter into valid agreements.
  5. Ultimately the Court has broad discretion to determine other factors it deems relevant under any set of certain circumstances.
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