The Requirement that a Party Against Whom a Pre-marital Agreement is Sought to be Enforced May or May Not Apply if the Party Has Been Represented by a Lawyer Since the Outset of Negotiating the Premarital Agreement

A premarital agreement will be considered voluntarily executed unless, among other things, the party against whom enforcement is sought had at least seven calendar days between the date he or she was “first presented” with the agreement and advised to seek an independent lawyer, and the time he or she signed the agreement.

Husband and Wife met in approximately 2003. He was 21 years older than she, and she owned and operated her own business.  Husband was a wealthy, retired businessperson.  The parties married on May 27, 2006, and separated on November 2, 2007.

Before marriage, the parties agreed to enter into a premarital agreement.  Husband’s family law lawyer drafted the agreement and presented it to Wife, who hired a lawyer.  Wife’s family law attorney prepared an addendum.  Between March and May 2006, Wife’s lawyer drafted five addenda, but Husband did not agree to the terms of the first four drafts.

On May 17, 2006, Wife faxed Husband a “goodbye” letter along with the four unsigned draft addenda, saying she loved him but was calling off the wedding given their inability to reach an agreement.  The parties then talked over the phone and agreed that they wanted to marry.  Wife’s family law lawyer prepared the fifth draft addendum (the “Addendum”).

On May 18, 2006, Husband’s family law attorney modified the Addendum, and the parties signed it two days before they married.

Husband’s family law lawyer filed for divorce in December 2007, moving to invalidate the premarital agreement on the grounds that he did not have seven calendar days between the time of presentation and execution of the agreement per Family Code Section 1615(c)(2).

Among other factual findings, the divorce court found that Husband was a sophisticated executive, and played “hardball” in the negotiations, refusing to sign until he could maneuver Wife to alter the agreement.  The divorce court ruled the seven-day rule applied, and it applied equally to parties who were represented by lawyers and to those who were self-represented,  the divorce court held the agreement was deemed involuntary as it ran afoul of the seven-day rule and the agreement was unenforceable as a result.  Wife’s divorce lawyer appealed.

The Appellate Court focused on whether the seven-day rule applied to parties like Husband, who had advice of a lawyer from the outset of negotiating the premarital agreement, or only to unrepresented parties.  The Appellate Court agreed with Wife’s divorce lawyer and determined that the seven-day rule did not apply in this case.

The Appellate Court focused on the statutory language – that the seven-day waiting period is measured from the time the party against whom enforcement is sought “was first presented with the agreement and advised to seek independent legal counsel,” and the moment of execution.  The conjunctive phrase, requiring both presentment and advice, implies that the waiting period is for the benefit of a party not represented by a lawyer at the time the agreement is presented, thereby affording time to obtain a lawyer and enjoy the benefit of a lawyer’s review of the agreement and advice before signing it. 

Ultimately, because Husband was a party represented by counsel from the outset of the transaction, the appellate court agreed with Wife’s divorce attorney and determined that the seven-day waiting period did not apply to this case and that the agreement was enforceable.

In re Marriage of Cadwell-Faso and Faso (2011) 191 Cal. App. 4th 818