A Self-Represented Party Against Whom a Premarital Agreement is Sought to be Enforced Must Also be Advised in Writing and Sign a Written Waiver Regarding the Relinquishment of Rights to a Lawyer

Husband and Wife became engaged and set a wedding date of March 7, 2008.  Husband downloaded a form premarital agreement, which he revised and emailed to Wife.  The draft premarital agreement provided that Husband owned certain real property, which would continue to be his after marriage, and that it would become community property after seven years of marriage, that Wife would own a 2% interest in the home for every year they were married if they divorced before seven years of marriage, and that Wife and any children will have a lifetime tenancy in the home.

Husband retained a family law attorney to represent Wife in the negotiation and execution of the premarital agreement.  Husband did not seek advice of counsel at any time.  On February 29, 2008, Husband emailed a copy of the draft premarital agreement to Wife’s lawyer.  On March 3, 2008, Husband e-mailed a revised draft of the agreement to Wife’s family law attorney’s office.  Wife’s lawyer reviewed the drafts and made notes regarding questions he had.

Wife’s family law attorney met with the parties on March 4, 2018.  The lawyer advised Husband to seek an independent lawyer, but Husband thought it unnecessary.  Wife’s lawyer discussed the agreement with Wife and Husband, explaining particular terms. 

On March 5, 2008, Wife’s family law lawyer revised the premarital agreement and sent both an unmarked and redlined version to both parties.  The new draft included new provisions, and stated that each party had more than seven days to review the premarital agreement before signing it.  The parties signed the final version (which included the new language) on March 6, 2008.  Husband executed a separate written waiver of the right to seek advice of a lawyer.

The parties eventually sought a divorce.  Wife’s divorce lawyer sought to enforce the premarital agreement, particularly the term regarding her lifetime tenancy in the real property.  The divorce court concluded the agreement was unenforceable because Husband did not receive the final version of the premarital agreement at least seven days before he signed it, and because he had not been provided with a written advisement of the rights he was relinquishing under the agreement and did not execute a written waiver of those rights under Family Code Section 1615, subdivisions (c)(2) and (c)(3). 

The Appellate Court affirmed, recognizing that the seven-day rule is designed to protect parties who execute a premarital agreement without legal representation, and this policy would be thwarted if the rule could be satisfied by the inclusion of boilerplate language that did not reflect the true facts (i.e., that the parties had had more than seven days to review the premarital agreement).  Subdivision (c)(3) of Section 1615 also required that Husband, an unrepresented party, was not advised in writing of the rights he was giving up as a consequence of the agreement and did not execute a written waiver of those rights.  The fact that Husband generated the initial draft of the premarital agreement by itself is of no consequence to this requirement.

In re Marriage of Clarke & Akel, (2018) 19 Cal. App. 5th 914