As Family Law Attorneys are well aware, when a divorcing couple have a Premarital Agreement (PMA), it is not uncommon for the economically disadvantaged spouse to challenge the PMA if there is a divorce. One of the most common grounds for a challenge is that their PMA signature was not “voluntary” under Family Code ྷ 1615(c) (2), which requires that the party against whom the enforcement is sought had not less than 7 calendar days between when that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
This statutory requirement created some ambiguity as was illustrated by the case of In Re Marriage of Caldwell-Faso and Faso (2011) 191 CA 4th 945. In this case Faso’s Attorney presented a PMA to Caldwell-Faso six months before the wedding and advised Caldwell-Faso to seek independent counsel. Caldwell-Faso was dissatisfied with the PMA and asked her Attorney to draft a modification. This was followed by numerous modifications until the final version of the PMA was delivered by Faso’s Attorney to Caldwell-Faso’s Attorney five days before the wedding and signed two days before the wedding. Caldwell-Faso at 950 – 952.
During their divorce proceedings, Faso sought to set aside the PMA because he did not have seven days between the time he received the final draft and his signature (he only had three days). Caldwell-Faso argued that the seven day rule of ྷ1615 (c)(2) only applied to self-represented parties. Caldwell-Faso at 952.
The Trial Court decided in favor of Faso and found no distinction between Attorney represented parties and self-represented parties when applying the seven day rule. However, the Appellate Court determined that ྷ1615 (c)(2) was ambiguous and reversed the Trial Judge because Faso was represented by an Attorney from the beginning of the PMA negotiations and he did not need the seven days to obtain and consult with legal counsel before signing. Caldwell-Faso at 957, 959 – 960.
In 2018 the Court decided In Re Marriage of Clarke and Akel 19 CA 5th 914, another seven day case, involving a husband who downloaded a PMA from a self-help publisher (Nolo Press) which he emailed to Akel. Further, Clarke hired an Attorney to represent Akel and Clarke remained self-represented. Subsequent negotiations led to a final PMA signed one day after receipt by Clarke from Akel’s Attorney.
In their divorce, Akel sought to enforce the PMA and Clarke opposed because he was self-represented and not given the final agreement seven days before he signed it.
The Trial Court ruled that the PMA in Clarke and Akel was unenforceable under ྷ 1615 (c)(2) because Clarke was not presented with the final version at least seven days before signing. The Appellate Court affirmed and relied on the fact that Clarke was self-represented and the changes to the original draft were significant. Clarke at 918.
As a result of Caldwell-Faso and Clarke, the application of ྷ1615(c)(2) was different for self-represented parties and for parties represented by Attorneys. This difference produced California Assembly Bill 1380, which passed the California Senate on July 11, 2019 and became effective January 1, 2020.
As a result of the 2020 Amendment, ྷ 1615 (c)(2) now requires that for PMA’s signed after January 1, 2020, the party against whom enforcement is sought must have seven calendar days between the time that party was first presented with the final version of the PMA and advised to seek independent counsel and the time the PMA is signed, regardless of whether the party is represented by Legal Counsel. This requirement does not apply to non-substantive amendments that do not change the terms of the agreement.
Self-represented parties and parties represented by lawyers are now treated the same under the seven day rule in ྷ 1615 (c)(2), and the seven day clock is re-set each time a PMA with significant changes is presented for signature.
This blog is not intended to give legal advice to the reader. What it does hope to accomplish is to familiarize the reader with the technical rules that apply to PMA’s, and encourage parties who want a PMA to consult with Attorneys who specialize in Family Law as early as possible before their intended wedding.